Developing structural intersectionality in legal analysisthe case of stereotypes as forms of discrimination

Resumen

There has been a growing interest in stereotypes within the European institutions and the legal scholarship in the last decade. In fact, stereotypes are consistently addressed as concerns for gender equality, with specific attention to how the legislation and the judicial practice might enforce stereotyped views on the role of men and women. Yet, stereotypes remain largely elusive in their structure and functioning, making their identification and the strategies to redress them difficult to pin down in legal reasoning. Moreover, no research so far has unfolded the implications of intersectionality in the study of stereotypes, and specifically regarding their structure and functioning. This dissertation seeks to fill these gaps, by identifying the elements and functioning of stereotypes as mechanisms of discrimination. In order to do so, it analyses a set of judgments delivered by the European Court of Human Rights in the field of family relations, where stereotyped arguments emerge in all their complexity. In fact, intersectionality is deployed both in the selection of cases, mainly regarding the intersection of gender with race/migration axis and in the analytical perspective adopted to illustrate them. Building on key contributions of feminist theory, the dissertation proposes to frame stereotypes within a ‘structural’ approach to antidiscrimination law: a critical perspective that accommodates the insights of intersectionality theory in its structural version. Finally, to illustrate the functioning of stereotypes in judicial reasoning, the thesis proposes a conceptual shift. Instead of static end-products or extra-legal elements, they are addressed as cognitive structures that might map onto existing legal mechanisms. To this end, the dissertation explores the similarities of stereotypes and legal presumptions, shedding light on the influence of these elements both in the evidentiary domain as well as in shaping legal definitions.