Posted by ccld201
10 March 2026In 2024, intersectionality’s long journey through international human rights jurisprudence reached two milestones — almost simultaneously, yet worlds apart. On 10 December 2024, the European Court of Human Rights (ECtHR) explicitly recognised intersectional discrimination for the first time, in FM and Others v Russia, a ruling in which five trafficked women were found to have been targeted specifically due to the intersection of their gender, ethnicity and irregular migration status. Across the Atlantic, in early 2025, the Inter-American Court of Human Rights (IACtHR) delivered its judgment in Santos Nascimento and Ferreira Gomes v Brazil, condemning Brazil for the intersectional race-and-gender discrimination suffered by two Black women denied employment. Both rulings invoke the concept of intersectionality coined by Kimberlé Crenshaw in 1989.[1] Yet the stark differences between the two judgments reveal how the quality of democracy — and the willingness of its institutions to perceive intersectional harm — shapes the very meaning of equality.
FM and Others v Russia concerned five women from Uzbekistan and Kazakhstan trafficked to Moscow, who were held in appalling conditions, subjected to forced labour and sexual violence. Despite years of complaints, Russian authorities repeatedly failed to investigate. The Court found violations of Article 4 (prohibition of forced labour) and, crucially, of Article 14 (prohibition of discrimination), holding that state inaction constituted intersectional discrimination against the applicants “as women who were foreign workers with an irregular immigration status” [para. 346]. Notably, the Court used the term “intersectional discrimination” explicitly, rather than merely identifying the concept implicitly through its reasoning.
The significance of this development cannot be overstated. For decades, Strasbourg had resisted naming intersectional discrimination despite academic calls to do so. In BS v Spain (2012), involving a Black sex worker subjected to police violence, the Court found a violation of Article 14 but refused to engage with the intersectional nature of the harm — treating race and gender as parallel rather than compounded grounds. Sandra Fredman and other scholars had long criticised the European system’s “single-axis” approach, which forces claimants to fit their experience into isolated categories of discrimination. With FM v Russia, the Court finally adopted the language and logic of intersectionality, recognising that the women’s vulnerability arose from the specific combination of gender, ethnicity and social position — not from each factor alone.
The IACtHR, by contrast, reached this point a decade earlier. In Gonzales Lluy and Others v Ecuador (2015), Judge Ferrer Mac-Gregor Poisot identified how “numerous factors of vulnerability and risk of discrimination intersected” [para. 290] in relation to a young woman, living with HIV, and in poverty. Since then, the Inter-American Court has built a jurisprudence in which intersectionality is not an occasional analytical tool but a structuring framework for understanding discrimination.
Santos Nascimento and Ferreira Gomes extends this trajectory into binding remedial orders. In 1998, Neusa dos Santos Nascimento and Gisele Ana Ferreira Gomes (both Black women) applied for positions at a medical insurance company in São Paulo. They were immediately turned away; a white woman who applied the same day was hired immediately. After twenty-six years of domestic impunity, the IACtHR condemned Brazil for failing to provide an effective judicial response to racial discrimination. Crucially, the Court ordered Brazil to adopt an investigation protocol incorporating an intersectional perspective on race and gender. Following the earlier Fireworks Factory ruling, the judgment also required corporate human rights due diligence measures, linking intersectional discrimination directly to structural obligations of the state and private actors.
The comparison between these two judgments exposes a fundamental asymmetry in how democratic legal traditions conceive of equality. The European system’s belated adoption of intersectionality reflects what Atrey has called a persistent “formalist” approach—one that compartmentalises identity and treats discrimination as deviation from a neutral norm rather than as a structurally embedded phenomenon.[2] The Inter-American system, forged in response to the colonial legacies that María Lugones identified as constitutive of modern gender hierarchies, has been structurally more receptive to seeing discrimination as produced at the intersection of multiple systems of oppression. This is not incidental. The IACtHR’s 2025 Climate Advisory Opinion went so far as to declare intersectionality “not an optional lens but a binding normative requirement” [para. 617]. Human dignity provides a further thread connecting these two systems. In FM v Russia, the European Court’s analysis under Article 4 ECHR, a provision the foundations of which rest on the inviolability of human dignity, may have predisposed it towards a more holistic reading of the harm, compelling it to treat the applicants’ compound vulnerability as a distinctive dignitary injury rather than as isolated protected characteristics. The IACtHR has been more explicit still: Article 11 of the American Convention enshrines human dignity as a freestanding right, and since Gonzales Lluy the Inter-American Court has consistently treated it as a normative anchor for intersectional analysis, on the understanding that compound discrimination produces a dignitary harm irreducible to any single axis of oppression.
This matters profoundly for how we understand the promise of the 2026 IWD theme — “Rights. Justice. Action. For ALL Women and Girls.” The word “all” demands intersectional attention. Neusa and Gisele were not discriminated against merely as women, nor merely as Black people, but as Black women — a specific form of structural violence, in Johan Galtung’s terms, that cannot be captured through single-ground analysis. The five women in FM v Russia were targeted not simply as women or as migrants, but at the precise intersection of gender, ethnicity and precarious status. If democratic legal systems cannot recognise these intersections, they cannot fulfil the dignity promise that Article 1 of the Universal Declaration makes to all human beings.
Both rulings are milestones, but neither is sufficient. FM v Russia identified intersectional discrimination in a case against a state that has now left the Council of Europe, raising questions about whether Strasbourg will develop the concept in future cases. Santos Nascimento ordered structural remedies, yet Brazil’s twenty-six-year failure to punish the original discrimination reveals the gap between normative ambition and lived reality. What Sandra Fredman’s substantive equality framework identifies as the need for structural transformation, not merely individual redress, remains the central challenge.
For women and girls in democracies, the lesson is uncomfortable: whether the legal system can see you depends on which democracy you inhabit, and how willing its courts are to recognise that discrimination rarely operates along a single axis. This IWD, the demand for “rights, justice and action for ALL women” must begin with an insistence that democratic institutions develop the conceptual tools to make “all” genuinely inclusive — intersectional in theory, structural in remedy, and universal in ambition.
Bernardo Carvalho de Mello is a doctoral researcher at Newcastle University Law School, where his thesis develops a novel taxonomy of discrimination in international human rights law. His research combines Johan Galtung’s violence theory with conceptual engineering and intersectionality, with a comparative focus on the European and Inter-American human rights systems.
[1]Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139.
[2]Shreya Atrey, Intersectional Discrimination (OUP 2019) chapter 2.