Ageism and Intersectionality

By Alan S. Gutterman

Subgroups of older persons benefit from the protection included in human rights instruments that have been created to address the rights of vulnerable groups of which an older person is a member; however, it has been argued by the proponents of a new international human rights instrument devoted to the human rights of older persons that it is necessary to recognize and address the distinctive challenges faced by all members of that group including discrimination, poverty caused by various age-related factors and violence and abuse, and ensure the guarantee of rights of older persons in relation to their physical and mental health.  While recognition of the specific human rights of older persons is laudable, albeit very difficult to achieve in practice, it is not as simple as that.  In fact, "older persons" are a heterogeneous group spanning a range of chronological ages and socio-economic contexts and including members who are simultaneously exposed to the challenges faced by other vulnerable groups based on gender, race and disabled status.  As such, there is room for the use of a tool that has come to be called "intersectionality", which takes into account that an individual's identity has many dimensions that do not exist in isolation and work collectively to affect individual experiences and behaviors in relation to inequality, injustice, exploitation, and oppression.  This book begins with a brief overview of intersectionality and then turns to a series of discussions about members of the larger group of older persons in their dual roles as members of other vulnerable groups defined by dimensions such as gender, disability, race and ethnicity, indigenous status, socioeconomic status, immigrant status and sexual orientation and gender identity.

• Language: English
• Publisher: Ageism Project
• Release date: Feb 3, 2022
• ISBN: 9798201606978

Alan S. Gutterman

This book was written by Alan S. Gutterman, whose prolific output of practical guidance for legal and financial professionals, entrepreneurs and investors has made him one of the best-selling individual authors in the global legal publishing marketplace.  His cornerstone work, Business Transactions Solution, is an online-only product available and featured on Thomson Reuters’ Westlaw, the world’s largest legal content platform, which includes almost 200 book-length modules covering the entire lifecycle of a business.  Alan has also authored or edited over 80 books on sustainable entrepreneurship, leadership and management, business transactions, international business and technology management for a number of publishers including Thomson Reuters, Practical Law, Kluwer, Oxford, Quorum, ABA Press, Aspen, Euromoney, Business Expert Press, Harvard Business Publishing and BNA.  Alan has extensive experience as a partner and senior counsel with internationally recognized law firms counseling small and large business enterprises in the areas of general corporate and securities matters, venture capital, mergers and acquisitions, international law and transactions and strategic business alliances, and has also held senior management positions with several technology-based businesses including service as the chief legal officer of a leading international distributor of IT products headquartered in Silicon Valley and as the chief operating officer of an emerging broadband media company.  He has been an adjunct faculty member at several colleges and universities, including Berkeley Law, Santa Clara University and the University of San Francisco, teaching classes on corporate finance, venture capital and law and economic development,  He has also launched and oversees projects relating to sustainable entrepreneurship and ageism.  He received his A.B., M.B.A., and J.D. from the University of California at Berkeley, a D.B.A. from Golden Gate University, and a Ph. D. from the University of Cambridge.  For more information about Alan and his activities, please contact him directly at [e-mail], follow him on LinkedIn (https://www.linkedin.com/in/alangutterman/) and visit his website at alangutterman.com.

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Introduction

The creation of what has become known as the international human rights system began with the activities of the United Nations (UN) when it was first established, notably with the adoption of the Universal Declaration of Human Rights (UDHR) by the UN General Assembly on December 10, 1948.  The UDHR follows a progression that begins with fundamental rights, then continues with civil and political rights, and ends with economic, social, and cultural rights, and Article 2 of the UDHR sets out a non-exhaustive list of prohibited grounds for discrimination including, among others, religion, race or color, and political or other opinion. [1]  The UDHR is not a treaty, and there has been debate as to whether it is a legally binding obligation on the states that comprise the membership of the UN.  However, regardless of its formal legal status, the UDHR served as the first universal statement of an expansive set of fundamental rights and laid the foundation for the international human rights framework that has evolved since the date of its adoption. [2]

The UDHR has been linked to two important UN human rights treaties, the International Covenant on Civil and Political Rights (adopted on December 16, 1966 and entered into force on March 23, 1976) (ICCPR)[3] and the International Covenant on Economic, Social and Cultural Rights (adopted on December 16, 1966 and entered into force on January 3, 1976) (ICESCR),[4] to form the so-called International Bill of Human Rights.  The ICCPR includes and expands upon almost all of the civil and political rights that had been included in the UDHR (other than rights relating to asylum, which are addressed in the Convention Relating to the Status of Refugees), and the ICESCR is also based on principles originally outlined in the UDHR, providing additional details in many instances, and affirms the right of all peoples to self-determination and their freedom to pursue and enjoy their economic, social, and cultural rights without discrimination of any kind.[5]

The international human rights framework referred to above now includes more than 80 international human rights treaties and declarations,[6] a great number of regional human rights conventions and domestic human rights laws and constitutions, all of which have evolved into a comprehensive legally binding system for the promotion and protection of human rights that includes an array of specialized instruments that focus on specific issues and social groups such as racial discrimination, torture, enforced disappearances, disabilities, and the rights of women, children, migrants, minorities, and indigenous peoples.[7]  Notably, age-based discrimination has not been explicitly defined in international human rights treaties (there is not international treaty or convention that specifically covers the human rights of older persons), and the Office of the UN High Commissioner for Human Rights has noted that with certain limited exceptions (e.g., the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of Persons with Disabilities and the Convention on the Elimination of All Forms of Discrimination against Women) references to age are scarce in any of the principal international human rights treaties.[8]

It is true that subgroups of older persons benefit from the protection included in human rights instruments that have been created to address the rights of vulnerable groups of which an older person is a member; however, it has been argued by the proponents of a new instrument devoted to the human rights of older persons that it is necessary to recognize and address the distinctive challenges faced by all members of that group including discrimination (i.e., older persons are routinely treated differently because of their age in both interpersonal and institutional settings), poverty caused by various factors including mandatory retirement ages and lack of access to pensions or adequate social assistance and violence and abuse in many forms, and ensure the guarantee of rights of older persons in relation to their physical and mental health (i.e., rights to a reasonable quality of life, information, privacy, personal integrity and freedom of movement and rights to affordable health services without fear of being denied treatment and care because of age-based criteria).[9]

While recognition of the specific human rights of older persons is laudable, albeit very difficult to achieve in practice, it is not as simple as that.  In fact, older persons are a heterogeneous group spanning a range of chronological ages and socio-economic contexts and including members who are simultaneously exposed to the challenges faced by other vulnerable groups based on gender, race and disabled status.[10]  As such, there is room for the use of a tool that has come to be called intersectionality, which takes into account that [a]n individual’s identity has many dimensions and that [t]hese dimensions, race, gender, age, class, religion, national origin, sexuality, etc. do not exist in isolation and instead work collectively to affect our experiences and behaviors in relation to inequality, injustice, exploitation, and oppression.[11]  As discussed below, intersectionality was first applied to expose shortcomings in understanding and analyzing discrimination against Black women and has been explained as follows[12]:

As a framework for advocacy, intersectionality holds that it is not enough to know that women are discriminated against because of their gender, instead we need to consider other factors such as race, sexuality, gender identity, immigration status, age, Indigenous status, disability, socio-economic status, religion, and others, to know what type of discrimination different groups of women face. Further, intersectionality requires that we understand that the combination of these factors produce a unique, substantively different experience of discrimination rather than an additional burden of discrimination.[13]

Intersectionality has spawned its fair share of controversy since it challenges the traditional solutions to discrimination on the grounds that they are based on the most privileged members of the group in question (e.g., middle class Blacks and heterosexual Black men when it comes to racism) and calls for new approaches that pay more attention to those who have been the most marginalized and recognize their intersectional experiences.[14]  This chapter begins with a brief history and overview of intersectionality and then turns to a series of discussions about members of the larger group of older persons in their dual roles as members of other vulnerable groups defined by dimensions such as gender, disability, race and ethnicity, socioeconomic status, immigrant and refugee status, sexual orientation and gender identity and indigenous status.  While hopefully helpful, intersectionality as applied in this chapter does not fully capture the complexity of each individual’s personal experience, since his or her identity is a mix of the impacts of more than just two dimensions (e.g., while the chapter discusses older women, the experience of older Black woman is different than that of an older white woman) and he or she must live in a world in which systems and experiences of discrimination change over time along with changes in the social and political context.[15]

Before examining the experiences of the various vulnerable groups, it is worth considering the place and impact of discrimination in American society generally.  The results of a comprehensive survey of Discrimination in America released in January 2018 found that majorities of nearly all groups—African Americans, Latinos, Asian Americans, Native Americans, white Americans, men, women and LGBTQ adults—believed that discrimination against their group generally existed including 92% of all African Americans, 90% of LGBTQ people, 78% of Latinos and 68% of women.[16]  Interestingly, more than half of white Americans (55%) also believed that there was discrimination against white people in America.  The most frequently reported incidents of institutional discrimination among all of the groups occurred in the workplace (i.e., when applying for jobs and when it came to being paid equally or being considered fairly for promotion), but minority groups reported far greater frequencies of this experience (e.g., 57% of Black Americans believed they were discriminated against with respect to equal pay or promotion versus 13% of white Americans and women were far more likely than men to report gender discrimination with respect to equal pay or promotion (41% women versus 18% men)).  In institutional settings other than the workplace, experiences varied: the most difficult experiences of Black Americans were interactions with police, while Latinos and Asian Americans reported their most trying challenges with discrimination came when they were seeking housing.  The report concluded that there was a systemic pattern of discrimination in American, with significant implications for the health and justice of both individual Americans and the nation as a whole.[17]

Updates to this book can be found at http://ssrn.com/abstract=3972842.

Intersectionality

It has been suggested that [o]ur experiences of the social world are shaped by our ethnicity, race, social class, gender identity, sexual orientation, and numerous other facets of social stratification. [18]  Some of these social locations afford privilege (e.g., being white) while others are oppressive (e.g., being poor), and an individual may be relatively privileged in one or more aspects of their life, while simultaneously experiencing prejudice, discrimination, or oppression stemming from other aspects of their social background or identity. [19] These various aspects of social inequality do not operate independently of each other; they interact to create interrelated systems of oppression and domination. [20]  The concept of intersectionality refers to how these various aspects of social location intersect" to mutually constitute individuals’ lived experiences, shape identities and create societal systems of oppression, domination and discrimination. [21]

According to Atewologun, [t]he notion of intersectionality is rooted in the racialized experiences of minority women in the United States ... [and] ... [e]arly criticisms of the artificial separation of gender and ethnicity in women’s lives can be found in the black and Latina feminist movements of the 1970s and early 1980s, which argued that (mainstream) feminism had advanced the cause for white women while silencing the voices of minority women.[22]  Black feminists criticized what they perceived to be the white, middle-class nature of the mainstream feminist movement as failing to take into account their relevant lived experiences.  For example, Black feminists argued that pressure to be a homemaker, one of the most important issues for white feminists, was not relevant to the many Black women who had to work in order to feed and house their families and thus has little practical opportunity to think about the luxury of being a homemaker.  In addition, many Black women had experienced sexism during the civil rights movement which prevented them from assuming leadership positions.[23]  The impact of racism in the feminist movement and sexism in civil rights led to the emergence of organizations such as the Combahee River Collective as champions of a Black feminist movement.  In its 1978 statement, the Collective, which was comprised of Black lesbians, explained: The synthesis of these oppressions creates the conditions of our lives. As Black women we see Black feminism as the logical political movement to combat the manifold and simultaneous oppressions that all women of color face.[24]

Two decades later, Kimberlé Williams Crenshaw, a Black legal theorist, expanded on the Collective’s theories in a famous 1989 essay titled "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.[25]  In her essay, Crenshaw actually coined the term intersectionality and argued that in order to understand the oppression of black women, it is necessary to look at the intersection of blackness and womanhood.[26]  Crenshaw specifically critiqued antidiscrimination laws for failing to adequately protect Black women from the crosscurrents of racism and sexism since courts used a single-axis framework (i.e., one that considers single, rather than multiple categories of identity) as a basis for rendering legal decisions in employment discrimination cases involving Black women ... [that] ... did not account for the multiple ways Black women experienced discrimination.[27]  According to Crenshaw, individuals should be viewed through a lens that acknowledges their multiple identities based on their simultaneous experience of a range of social categories such as race, gender, socioeconomic status and sexual orientation and takes into account how their identities intersect to influence their experience of the world, particularly experiences that lead to discrimination.[28]

Concurrently with the work of Crenshaw, intersectionality was defined by Black feminist sociologist Patricia Hill Collins as forms of intersecting oppressions, for example, intersections of race and gender, or of sexuality and nation.[29]   In 1991, Crenshaw wrote a follow-up piece in which she argued that treating race and gender as mutually exclusive categories of analysis, and particularly focusing on the experiences of middle-class white women and middle-class Black men, led to marginalization and disempowerment to poor Black women and poor immigrant women of color who are multiply burdened by several structures of discrimination and inequality.[30]  In 2002, Collins described a matrix of domination, multiple and interlocking systems such as sexism, ageism and classism, within which intersecting oppressions originate, develop, and are contained and argued that [i]n the USA, such domination has occurred through schools, housing, employment, government and other social institutions.[31]  Since then, others have acknowledged the insights and contributions of Crenshaw and Collins, both of whom initially focused on Black women, but have turned their attentions to broader and more complex questions about how, for example, Black women are themselves subject to further differentiation based on other axes of inequality, such as social class or nationality which result in [p]oor Black women hav[ing] different experiences in housing, education and employment compared with wealthy Black women.[32]

Since the 1990s, intersectionality has become recognized as a framework for conceptualizing a person, group of people, or societal problem as affected by a number of discriminations and disadvantages ... [based on] ... multiple sources of oppression: their race, class, gender identity, sexual orientation, religion, and other identify markers.[33]  Within the social sciences, intersectionality provides the mindset and language for examining interconnections and interdependencies between social categories and systems.[34]  In 2000, the United Nations recognized intersectionality as a concept to capture: ... the structural and dynamic consequences of the interaction between two or more forms of discrimination or systems of subordination. (Intersectionality) specifically addresses the manner in which racism, patriarchy, economic disadvantages and other discriminatory systems contribute to create layers of inequality that structure the relative positions of women and men, races and other groups.[35]

Researchers focusing on intersectionality have investigated various categories of difference in individual lives, social practices, institutional arrangements, and cultural ideologies and the outcomes of these interactions in terms of power[36]; however, it has been noted that researchers engaging in intersectionality work tend to overlook age as a systemic structure of gendered inequality, especially old age and feminist theories and politics fall prey to ageism by focusing on the analysis and experience of younger females, an oversight that should be addressed in future research by conceptualizing older age as a unique yet intersecting structure of domination and disempowerment.[37]

Calasanti and King wrote about intersectionality and age, beginning with the following observation[38]:

Social gerontologists often misunderstand intersectionality, equating it with attention to diversity or difference. However, an intersectional approach moves us beyond observation of difference to specify relations of inequality between groups. Though it implies diverse experiences of ageing, intersectionality does not designate independent groups to be studied separately, but instead relates groups, in terms of institutionalized activities that maintain inequality.

Acknowledging Crenshaw’s role in coining the term in relation to the intersection of racism and sexism into Black women’s lives, Calasanti and King noted that the list of dimensions of inequalities had lengthened over time to include such statuses as sexuality and age and that scholars continue to debate which of those intersect ... and how to measure the complex effects.[39]  For example, Calasanti and King pointed out that while old age is a time of many hardships for women ... being old does not mean that all aspects of womanhood grow worse with advancing age.[40]

Calasanti and King noted that [s]ocial gerontologists readily discuss differences based on such status characteristics as age, gender, race, and sexuality ... [but] ... correlating a binary variable such as gender with the behaviors or situations of later life does not necessarily equate with the study of inequality (e.g., men have lower life expectancies than women, but this may be attributable in part of behaviors that are unrelated to social inequalities such as higher rates of cigarette smoking and alcohol use among men).[41]  They argued that intersectionality must tie these behaviors to power-based relations among groups: not just women and men, but also groups distinguished by such other inequities as race, class, age, and sexuality.[42]  According to them, [s]ocial inequalities comprise relations in which some groups lose authority, status, and wealth, and are stigmatized by others ... [and] ... [t]he study of intersections of such inequities begins with the insight that reports of aggregate life chances of such large groups as women and men hide substantial differences in income and other aspects among them.[43]

Calasanti and King referred to Hurtado’s theory that social inequalities emerge from the bonds between various groups of women and the most privileged members of any Western society: elite, white men ... [and that] ... life chances are shaped by the fact that such 'white men use different forms of enforcing oppression of white women and of women of Color'.[44]  According to Hurtado, white women, as a group, are subordinated through seduction, women of color, as a group, through rejection and many oppressed groups in American society are often physically separated by geography, ghettos, and labor hierarchies, from power centers.[45]  Segregation of groups by class, thus creating social inequalities, also occurs through economic, political and cultural systems of labor and property ownership, educational institutions and national pension schemes.[46]  For example, how families divide and compensate domestic labor affects men and women throughout their lives, as workplace experiences of respect and level of remuneration, and later as retirement income.[47]  In addition, relations of sexuality have marked off those who do not bond sexually with members of the opposite sex as outcasts from legally recognized families and as objects of public scorn and even violence.[48]

Writing about age as a system of inequality, Calasanti and King observed that age involves more than physical changes or the cumulative impact of other inequities over the life course; it is a source of disparity in its own right in that those deemed 'not old' benefit from the ageism and maintain control of valued resources.[49]  They then went on to explain as follows[50]:

Equations of old age with decline and frailty justify limiting the autonomy and authority of old people, who find themselves marginalized in the labor market and then find it more difficult to he heard and influence decisions made about their bodies.[51] When they become dependent on the state, they are seen as less than full citizens.[52] The stigma and exclusion attendant on old age is such that people seek to avoid it at all costs, even distancing themselves from those who are seen to be old.[53]

Holman and Walker harkened back to Crenshaw’s original essay and noted that [her] motivation for outlining intersectionality was that without a way to frame [subgroup inequities] they can be rendered invisible and concluded that the main value of intersectionality is that it directs attention towards subgroups that face disadvantages that might otherwise go undetected.[54]  They noted that [d]iscrimination—the unjust, unfair treatment on the basis of social categories—has been shown to be an important determinant of health inequalities[55] and that [g]erontologists have considered the interplay between ageism and other forms of discrimination, most notably with respect to sexism ... [but that] ... empirical studies are rare.[56]  For example, they referred to a comprehensive systematic review of studies of individual and structural ageism conducted by Chang et al. that confirmed its pernicious health effects but also noted that very few of the studies had analyzed interactions of ageism with other forms of discrimination.[57]

Chang et al. argued that intersectionality should be recognized as an important area of future research on the adverse effects of ageism on health, and Holman and Walker described an earlier paper by Dressel