The more the merrier? The intersectional approach to disability rights cases in the context of the EU

In recent years, the phenomenon of intersectional discrimination has gained a lot of attention from policymakers and lawyers in Europe. However, disability as a dimension of intersectionality is frequently overlooked by researchers and practitioners. This is even though people with disabilities constitute one of the most vulnerable minority groups in Europe. Furthermore, courts are reluctant to use an intersectional approach in cases with a potential intersection of disability and other discrimination grounds. As a result, the complex nature of the inequalities experienced by people with disabilities is not fully captured in many cases of intersection of disability with other vulnerabilities. The thesis seeks to explore the applicability of the intersectional approach to disability rights jurisprudence. To find theoretical gaps in application of the intersectional approach to disability rights jurisprudence, I tested whether the disability dimension of intersectionality fits into the theory of anti-discrimination law, using the ECtHR case law. Here, the Tarunabh Khaitan theory of discrimination law and the anti-stigma principle developed by Iyiola Solanke were my starting points. To explore the practical difficulties in the application of intersectionality to case law involving disability as a claimed or potential discriminative ground, I analyzed the case law of the ECtHR and the CJEU. The research revealed an important contradiction. On the one hand, the intersection of disability with other discrimination grounds can be justified by the theory of discrimination law. On the other hand, in practice, the intersectional approach may not be fully applicable to disability rights cases for several reasons. First, inconsistency in the approach to disability rights cases in the case law of both the ECtHR and the CJEU prevents further steps toward the implementation of the human rights model of disability. Second, the existing hierarchy of discrimination grounds in European anti-discrimination law hinders the importance of the disability dimension in cases of intersectional discrimination. This hierarchy limits the implementation of a key UNCRPD principle of non-discrimination.