The Role of Intersectionality in Legal Mobilisation: Critical Theory and the Contested Construction of EU Equality Law

While a growing body of interdisciplinary scholarship explores legal mobilization as a driver of the construction of EU law, the role of critical theory in EU legal entrepreneurship has attracted comparatively little attention. This paper focuses on the mobilisation of critical legal epistemologies in the framing and litigation strategies of norm entrepreneurs the field of EU equality law and analyses how this shapes its construction. Numerous scholars of discrimination, fundamental and human rights law have called for the implementation of intersectionality as an approach to dismantling social hierarchies and tackling disadvantage. The paper investigates how legal professionals and litigants (including law clinics, civil society organisations, activists and practitioners) seize the epistemic repertoire of intersectionality theory to frame contestations and request transformations of EU equality law across different sites including advocacy, law-making and judicial arenas. (1) The paper traces and analyses how and why various categories of legal practitioners seize the epistemic resources offered by theories of intersectionality to craft new legal framing strategies in EU equality law. It explores the role of epistemic workers, norm entrepreneurs and legal engineers in translating, elaborating, diffusing and operating intersectionality in EU equality law. (2) The paper explains how these intersectionality-driven frames shift the parameters of the non-discrimination legal discourse to articulate and legitimize new legal demands and ultimately to craft new legal opportunities. The paper argues that intersectionality plays a transformative role when targeting the law as an authoritative discourse and a generator of legitimate representations, interpretations and expectations, and in legal entrepreneurship that seeks to unsettle prevailing legal paradigms and practices with a view to social change. (3) Turning to the outcomes of these legal interventions, the paper assesses how these instances of (critical) legal mobilization have shaped the body of existing provisions in EU anti-discrimination law and affect the judicial construction of equality rights at the Court of Justice of the EU. The paper critically assesses what resistance these mobilization endeavours encounter and how they ultimately displace the normative boundaries of the European Union's equality regime.