What is involved in seeing discrimination as systemic and structural, and how could such an approach help us identify injustices, or aspects of injustices, that might otherwise be invisible?
We lack a robust conception of systemic discrimination, both within philosophy of law and within our legal institutions. This lack is partly explained by the fact that most countries’ domestic discrimination laws target individual acts of discrimination and individual perpetrators. Although claimants can certainly bring evidence of how policies across different contexts intersect to reinforce disadvantage, the ultimate goal of domestic discrimination laws is not to explore these intersections but simply to figure out whether a particular discriminator needs to change a particular policy.
This focus on individual discriminators in isolated contexts might lead one to assume that “systemic discrimination” just means “pervasive discrimination” and that it involves a large number of similar, individually cognizable incidents of discrimination, each of which can be understood as wrongful when taken on its own. If that were right, then there would really be no point in trying to develop a separate conception of systemic discrimination. All we would need to do to understand systemic discrimination is aggregate our analysis of the wrongs done by discrimination in individual cases.
However, within international law, there are institutions tasked with looking at a whole society and identifying system-wide violations of equality rights. Their work suggests that there are richer conceptions of systemic discrimination available to us and that seeing discrimination as systemic can reveal things to us about this kind of injustice that an individualized approach cannot.
One of these institutions is the UN’s Committee for the Elimination of Discrimination Against Women (the CEDAW Committee), which is charged with investigating grave or systematic violations of the equality rights in the CEDAW Convention. Because the Convention imposes on states an obligation to take “all appropriate measures to eliminate discrimination against women by any person, organization or enterprise” (Article 2(e)), the Committee is not confined to investigating isolated policies, nor even to looking only at government policies. It can and must assess the combined impact upon women of many different institutional policies and informal social practices.
The CEDAW Committee has defined a “systematic” violation of women’s equality rights as “a persistent pattern of acts which do not result from a random occurrence or are not isolated acts” (Report Concerning Poland, para. 97). It has noted that “the systematic denial of equal rights for women can take place either deliberately, namely with the state party’s intent of committing these acts, or as a result of discriminatory laws or policies, with or without such a purpose” (Report Concerning the Philippines, para. 48). So understood, systemic discrimination involves patterns of discrimination consisting of both intentional and effects-based forms of discrimination.
These patterns involve institutionalized forms of exclusion and disadvantage that reinforce and compound each other’s impact, often through recurring stereotypes or generalizations about group capacities and social roles. They are pervasive, occurring across many different social contexts. And they often result in discrimination having a qualitatively different impact than one or two individual acts of discrimination: the groups in question are often in some way segregated from others and denied full and equal status as members of the polity. These patterns are also self-perpetuating, in the sense that even after unjust laws and policies have been repealed, the exclusions and disadvantages tend to persist.
This is of course only the beginning of an adequate conception of systemic discrimination. But already, it gives us reasons for thinking that seeing discrimination as systemic is often crucial. In what follows, I want to focus on three of these reasons.
First, even in cases where individual acts of discrimination are visible on their face, seeing discrimination as systemic can reveal a qualitatively different impact on the group in question and additional ways in which they are wronged. We can see this when we examine the situation of women in Afghanistan, as documented both in CEDAW’s Inquiry Report and in the very recent judgment of the UN’s Permanent People’s Tribunal for the Women of Afghanistan. Through more than 126 gender-specific edicts and decrees, the Taliban has systematically banned girls from secondary and higher education, prohibited women from paid employment, prevented women from accessing healthcare, and restricted their movement without a male escort. The Taliban has even criminalized the very presence of women in public places by enforcing full body and face coverings and making it a crime for a woman’s voice to be heard in a public place. Taken together, these restrictions not only deny women a set of rights and freedoms, they also deny them an equal status in society at large. Indeed, they render women completely invisible in certain areas of social life—in particular, in public places, in political life, in the visible economy. Women no longer exist within these spaces at all; they are effectively erased. These effects on women are visible only from a systemic perspective.
Second, taking a systemic perspective is sometimes necessary if we are to see that particular acts are discriminatory in the first place. Although the Taliban’s gender-based edicts are all deliberately and facially discriminatory, many acts in other contexts only appear as discriminatory when we understand them within the context of a set of institutionalized forms of exclusion and disadvantage. Consider the case of SMF v. Spain, in which the CEDAW Committee found that Spain had violated its treaty obligations by not taking seriously the complaints of a woman about discrimination in the context of her pregnancy and delivery. This woman had been subjected, upon arrival at the hospital, to a series of unnecessary and invasive interventions without adequate information and without her consent. When she brought her complaint to the hospital, they deferred to the doctor; and when she took her claim to the courts, they deferred to the hospital, holding that “it seemed unlikely that the mother would have been able to give her consent under such conditions and in the middle of labour” (SMF v. Spain, 2.18). The CEDAW Committee, in its decision, highlighted that these institutional responses, though not the product of a deliberate attempt to subordinate women, nevertheless relied on, and further entrenched, discriminatory assumptions about women. In this case, it was only by seeing these responses to this particular woman as parts of a pattern of gendered expectations of women’s passive compliance and deference to medical authorities that the Committee was able to see them as discriminatory.
Third, it is only by seeing discrimination as systemic that we are led to focus not just on individual perpetrators and individual policies but on the reinforcement mechanisms through which discrimination becomes pervasive and self-perpetuating. This is crucial precisely because, in societies with systemic discrimination, the exclusion and marginalization of the groups that have faced discrimination tends to persist even through changes to individual laws and policies. It is only by targeting the reinforcement mechanisms that we can hope to make a real difference. I have argued elsewhere that these mechanisms involve things like recurring stereotypes, embedded in many institutions across different contexts, whereby policies in one context support the use of the stereotype in another; stigma that bleeds from one context to another; laws and policies “individualizing” the discrimination, presenting it as the fault of isolated individuals (“bad apples”) or the fault of the victims themselves, thereby obscuring the systemic nature of the problem; and a collective public failure to see institutional inaction and state inaction as a contributing cause.
All of these reinforcement mechanisms are visible in a scenario in my own country, Canada, where Indigenous women, girls and LGBTQ2S+ people face systemic discrimination across multiple social contexts. Both an Inquiry Report by the CEDAW Committee and a National Inquiry by the Canadian government have revealed that the very public institutions that were supposed to protect Indigenous women have disempowered them over the course of our colonial history—at first deliberately and coercively, and now through their inaction and failure to provide adequate resources. For example, the healthcare system coercively sterilized Indigenous women for years, treating them as a kind of contagion themselves. Official sterilization policies have been repealed, but women are still coercively sterilized. The child-welfare system historically regarded Indigenous women as immoral and unable to parent in a “civilized” way. Its official policies are no longer intentionally discriminatory, but local child welfare programs are so inadequately funded, and Indigenous lifestyles so misunderstood, that a disproportionate number of children are still removed from their communities and placed miles away. The police, whose job it once was to regulate the movements of Indigenous women and to portray them as a threat to public security and public morals, are now in charge of investigating missing and murdered Indigenous women. They have routinely delayed or dispensed with investigations on the grounds that these women choose to live risky lifestyles and really don’t need rescuing. All of these examples and many others are discussed in detail in the National Inquiry Report.
It’s because of these sorts of reinforcement mechanisms—stereotypes that stigmatize Indigenous women and that bleed from one context into another; laws and policies that individualize the problem, blaming Indigenous women for their predicament; and a failure to see governmental inaction as partly responsible and the state having an obligation to step in—that systemic discrimination is so resistant to our attempts to address it. Certainly we cannot hope to eradicate it by focusing only on individual discriminatory acts or by giving the groups that have faced systemic discrimination a mere formal recognition of their legal rights. We need to target the reinforcement mechanisms that enable discrimination to be self-perpetuating.
Sophia Moreau
Sophia Moreau is Samuel Tilden Professor of Law and Professor of Philosophy at New York University. She is currently writing a book on moral obligations in circumstances of injustice and a series of papers on systemic discrimination and systemic approaches to equality rights in international law. Her past work involves both legal scholarship (in discrimination theory and tort theory) and philosophical scholarship (on a variety of questions in moral, political and legal philosophy).
