This submission is being published as part of the series at HRH, which is dedicated to Human Rights Day (s) and fostering meaningful discussions on human rights issues.
By: Nozizwe Dube
Introduction
The first few weeks of the second Trump administration have been characterised by successive efforts to dismantle several governmental agencies, among them the US Agency for International Development (USAID). The global health landscape without USAID - an agency that provides relief in humanitarian crises and health emergencies, and supports economic development in vulnerable regions – has dire consequences for many marginalised people around the world. In this light, UNAIDS’ 2025 Zero Discrimination Day’s theme, “We Stand Together”, could not be more timely. This year’s theme reignites the bid for a focus on the pivotal role that communities and community-led organisations play in building sustainable responses to HIV. This blog post elaborates on how the 2025 Zero Discrimination Day’s theme alludes to the need for an intersectional approach to inequality and discrimination. Specifically, this blogpost demonstrates intersectionality’s relevance for illuminating how discrimination grounds intertwine to cause synergistic harm; and how intersectionality lends itself as a useful framework to grasp the ubiquitous nature of intersectional disadvantage.
Defining Intersectionality
Intersectionality – a theoretical framework with roots in critical race theory and critical race feminist scholarship – articulates how systems of marginalisation such as racism, sexism, and classism work together to cause unique discrimination. Within equality law, systems of marginalisation are connected to discrimination grounds such as race, gender, socio-economic class, and disability. These grounds can be enumerated in equality clauses and non-discrimination provisions.
Rather than being the result of an addition of the constituent grounds, intersectional harm is larger than the sum of its parts. This means that intersectional discrimination is qualitatively different from both traditional single-axis discrimination based on a single ground, as well as other forms of multiple discrimination such as additive and cumulative discrimination. Intersectional discrimination, as a form of multiple discrimination, is synergistic as the intersecting oppressions are inseparable.
Hence, intersectionality equips equality law with the tools to grasp how a Black woman living with HIV experiences intersectional harm as she is located at the nexus of racism, sexism, and stigma based on HIV-status. Traditionally single-axis legal frameworks, with their exclusive focus on one identity marker, cannot account for intersectional harm. With the exception of Article 5(2) Convention on the Rights of Persons with Disabilities (CRPD) which guarantees to persons with disabilities equal and effective legal protection against discrimination on all grounds, the equality provisions in other international human rights law conventions retain a thematic focus on their respective grounds. Treaty bodies have therefore had to acknowledge intersectionality in their respective general comments and general recommendations (see here for some examples from the Committee on the Elimination of Racial Discrimination's (CERD), the Committee on the Elimination of Discrimination against Women (CEDAW Committee), and the Committee on Economic, Social, and Cultural Rights (CESCR). The CRPD Committee remains more comprehensive than other treaty bodies, as it specifically acknowledges inclusive equality which has redistributive, participative, accommodating, and recognition (which includes intersectionality) dimensions. This disintegrated approach to intersectionality in international human rights law has led to advocacy for 'intersectional mainstreaming', so that intersectional harm can be combatted with appropriate remedies in all treaty bodies.
Intersecting Discrimination Grounds
On the occasion of this year’s Zero Discrimination Day, UNAIDS calls on countries to support communities in their work to monitor respect for human rights including ending criminalisation of key populations, stigma and discrimination and gender inequalities. While some of the discrimination that people are living with HIV face can be addressed through the right to health enshrined in Article 12 International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 12 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), people living with HIV face discrimination also in other aspects of life, ranging from housing, immigration, to employment. It is therefore significant that HIV-status has gradually gained recognition as a protected discrimination ground within different courts across the world. Additionally, it is notable that HIV-status’ recognition as a discrimination ground in some jurisdictions is a recent development as this has occurred over the last 20 years.
In Hoffman, the South African Constitutional Court (SACC) held that the denial of employment to an HIV-positive man to work as a cabin attendant constituted discrimination based on HIV-status. Similarly, in Kiyutin v Russia, the European Court of Human Rights (ECtHR) held that the denial of a residency application due to a HIV-positive status constituted discrimination based on HIV status. In Kiyutin and Hoffman, both courts had to decide whether HIV-status should be recognised as a protected ground under equality law. As equality clauses tend to enumerate ‘traditional’ grounds such as gender, race, and religion, the extension of discrimination grounds to include ‘newer’ vectors of exclusion such as HIV-status is a battle that first needs to be overcome prior to remedying the inequality. For both the ECtHR and the SACC, the fact that people living with HIV have a history of prejudice and stigmatisation rendered them a vulnerable group requiring protection from discrimination.
Simultaneously, the stigmatisation of people living with HIV rarely functions alone. This stigma tends to be accompanied by homophobia, transphobia, sexism, and other interlocking systems of marginalisation. This realisation buttresses the need for an intersectional approach when standing together against discrimination. The facts in the Inter-American Court of Human Rights’ (IACtHR) case Vicky Hernandez v Honduras – a case concerning the murder of an HIV-positive, transgender woman, sex worker, and human rights defender due to gender-based violence – exemplifies this intersectional harm. Hernández’ life was marked by intersecting oppressions which materialised in her death. Vicky Hernández v Honduras is an important judgment as the IACtHR held that the Convention of Belém do Parà which criminalises violence against women is also applicable to transgender women. However, the IACtHR focused primarily on gender identity as the only possible intersecting discrimination ground. Attention for the synergy between all relevant interlocking systems of marginalisation is necessary as this intersectional acknowledgment leads to sustainable and dignifying remedies designed for multiply marginalised communities.
Intersecting Rights
Intersectionality also highlights the ubiquitous nature of discrimination and inequality. As a product of critical race scholarship which has implored the law to change its tendency to decontextualise, acknowledging intersectional harm requires considering the wider context of disadvantage to understand how and why certain multiply marginalised communities are vulnerable. The social positioning of groups such as LGBTQI+ people, who do very important work regarding HIV, is not the natural order of life. Rather, as intersectionality shows, concerted attacks and negligence from powerful actors on multiple fronts have created the current conditions of their intersectional inequality. For example, crackdowns on civil society in the form of criminalisation and violations of the freedom of association of LGBTQI+ organisations cannot be disconnected from the violation of the right to health for LGBTQI+ people across the world when their access to healthcare is obstructed. When a contextual perspective is taken, one sees that the subordinate status of LGBTQI+ people is the result of violations of intersecting rights covering civil, political and socio-economic rights. As such, intersectionality’s emphasis on contextualisation divulges how discrimination cannot be confined to one area of life. Intersectionality therefore lends itself particularly well to foreground the interdependent nature of human rights.
In that regard, it is important that on Zero Discrimination Day, UNAIDS calls on countries, donors, and partners to support community-led organisations so that they are able to deliver life-saving services and advocate without discrimination and harassment. This is a global concern also implicating the European Union as the European Commission's infringement procedure against Hungary before the Court of Justice of the European Union (CJEU) demonstrates. At stake is the question whether Hungarian legislation which states the aim to combat paedophilia, but actually targets LGBTQIA+ people and their organisations, violates fundamental EU values of democracy, the rule of law, and human rights as enshrined in Article 2 Treaty on the European Union (TEU). This, too, goes to show how ubiquitous intersectional discrimination can be.
Conclusion
At a time where powerful actors unleash attacks against marginalised groups, it becomes important – as UNAIDS’ Zero Discrimination Day’s theme encourages – to stand together with targeted communities and community-led organisations. An imperative tool to achieve this is intersectionality. Intersectionality’s ability to connect the seemingly disconnected, from multiple discrimination grounds to different types of human rights, makes it an essential tool in this journey towards justice and inclusive equality.
Bio:
Nozizwe Dube is a PhD candidate in EU Law at Maastricht University. In her research project, Nozizwe conducts a critical race feminist analysis of EU equality law. To this end, the project also comprises of comparative research with the equality jurisprudence of the European Court of Human Rights, US Supreme Court, and the Constitutional Court of South Africa.