Keynote legal seminar of the European network of legal experts in gender-equality and non-discrimination

1.???? Introduction

Thanks so much for the kind introduction and for the opportunity for joining you today at your annual seminar.

You just heard a bit about my professional background. I have 15 years of experience practicing as a lawyer, funding litigation, and teaching and training on strategic litigation, as a Black woman, and in a multitude of contexts. I founded and built two organisations working across Europe, one on digital rights, and one that works to change how the law works for communities fighting for racial, social, and economic justice. I am still very much in the process of building the latter, called Systemic Justice , which was founded two years ago this month.

Prior to founding Systemic Justice, I set up and built the Digital Freedom Fund , which supports strategic litigation on digital rights – human rights in the digital context – in Europe. A key part of our work was grantmaking: we fundraised and regranted funds for cases that could advance human rights in the digital context. Seeing lawyers’ proposals for casework gives you an interesting overview of how they approach strategic litigation, and I will confess that this was what gave the final push for wanting to try to do things differently and build strategic litigation in a community-driven way .

Perhaps the most painful was to see situations where work framed as partnerships turned out to be extractive. We would see lawyers parachuting into long-term community work when it had acquired a digital aspect, cherry-picking cases, and claiming victory on those individual cases without acknowledging the deeper community work that underpinned that “win”. I would describe these examples as manifestations of a “law first” approach , where communities are being “helped” by lawyers to achieve “legal wins” that they often did not ask for. This, from where I stand, is the prevailing approach in strategic litigation in Europe today.

This, combined with experience initiating decolonising work, a journey of learning and unpacking what my own positionality means in my work as a lawyer, and a lot of talking, thinking, and plotting with co-conspirators, has brought me to a place where we as a team at Systemic Justice want to do things differently – to radically change how the law works for communities fighting for racial, social, and economic justice.

All change starts with imagination and setting a vision for a better future. Our vision for better strategic litigation is one where that work is community-driven: where communities that are resisting racial, social, economic, and climate injustice are able to include strategic litigation in their campaigns for change and to do so on their own terms. Where communities are able to remain in their power throughout the process, with lawyers ensuring the legal work needed is done as it should.

To get there, we need to draw on existing good practices in community and movement lawyering , and build alternatives to the problematic patterns that exist in traditional lawyering models. Throughout the litigation process, we ensure the community partner is fully supported – we look at this holistically – and we make sure that “the law” (or lawyers!) do not take over in setting the pace, tone, or direction of the joint work.

Alongside our central work of building strategic litigation projects, we also work to build the knowledge and power of communities so they can make informed decisions on whether or not strategic litigation is a tactic they want to include in their campaigns for change. This includes developing resources, like our recently launched “Community toolkit for change ”, which includes a guide for using strategic litigation in campaigns for change (and I can honestly say – as I did not write it – that it is the best guide out there: very accessible and full of real world examples), a glossary explaining essential legal terms in normal human speak, and a short worksheet that can serve as a conversation starter for communities wanting to explore litigation for their work. It also entails workshops, to take people through these resources and assist them in exploring litigation options that serve their cause.

The third strand of our work is our Community of Practice , in which we facilitate exchanges between lawyers and litigating organisations across Europe that want to work in a more community-centred way but could use the sharing of best practices to move towards that.

I will gladly fill up all my speaking time telling you all about our work and the exciting cases we’re building with community partners! But: that is not what I was invited to do today (though you can ask me anything during the Q&A later).

What I will do, is use the rest of my time this morning to:

(1) share with you what we learned from our community consultation process last year, which sought to surface communities’ priorities in resisting systemic injustices across Europe. This is a first of its kind “community view” of what racial, social, and economic injustice looks like across the region and what opportunities for change communities are seeing;

(2) talk about the role of technology in all of this, and hopefully make a compelling case for everyone in this room to stop talking about “AI” and “bias” when we should be talking about systemic racism, gender discrimination, ableism, and so on;

(3) set out what role strategic litigation can play in dismantling these systems of oppression; and, finally

(4) what we can all do to move towards collective liberation instead of upholding the status quo.

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2.???? “Inequalities” in Europe: the view from the field

“We are told that we have equality, but in court we don’t. We need to make the justice system fairer for all.” – Social protection roundtable participant

“There are lots of legal and human rights frameworks that could be used to fight for justice. There is a lot of justice spelled out on paper that is not being applied in practice.” – Climate justice roundtable participant

“We have the feeling that strategic litigation is something very big and distant, out of reach for most grassroots collectives.” – Survey respondent?

“[I]t felt very extractive and like they were shopping for cheap cases to widen their portfolio rather than actually help.” – Survey respondent

These are some of the reflections activists across Europe shared with us in our community consultation process last year. We initiated this consultation to identify priorities for racial, social, and economic justice as seen by the communities that are resisting the fallout of the climate crisis, our failing social protection systems, an institutionally racist police force, and much more.

Systemic Justice’s central premise is that communities should be in the driver’s seat when it comes to using litigation as a tool in their campaigns for justice. Rooted in the disability movement’s motto “nothing about us, without us”, we invest in consulting with communities directly instead of relying on the reports and papers that speak predominantly about them.?

How do we find out what injustices communities are resisting? By asking. Our European-wide mapping of priorities in racial, social, and economic justice included:

• a needs assessment survey we had open for 6 months and received nearly 100 submission to;
• 100 1:1 conversations I had with community activists and organisers;
• the mapping of 1000+ organisations and movements in Europe working on racial, social, and economic justice;
• and a series of six roundtable conversations with activists across the region, focusing on climate justice, access to justice, social protection, policing, free movement, and anti-racism.

Besides bringing into focus where we could best direct our first work – which turned out to be climate justice and social protection – the many conversations we had with organisations, movements, and collectives across the region also illustrated the degree to which the legal system, including lawyers, have been failing communities. It also showed how much people feel they are not being seen by the institutions that are supposed to be there to safeguard their rights, and how grassroots groups feel pushed out of the frame by big NGOs, who are setting the debate for them without much of a direct connection to or experience with the injustices communities are resisting. In fact, community activists conveyed a feeling of merely being used as a “campaign prop” or a fig leaf for fundraising efforts by the big human rights, climate, and other NGOs. ?Our consultation showed a picture of the system – states, institutions, lawyers, NGOs – falling short in achieving justice for the communities it purports to serve.

Systemic Justice’s research is designed to surface and expose structural injustices as a resource to help challenge the political, social, and economic drivers that cause harm. It foregrounds the silenced and excluded stories and narratives of those who are disproportionately affected by climate injustice , denied access to justice , are over-policed and under-protected, subjected to systemic and institutional racism and denied freedom of movement .? It is community-affirming, open to and accessible by all communities, and informs our strategies for resisting and ending systemic injustice.

Emerging from our roundtable conversations were the stories of social unprotection and institutional abandonment endured by those seeking refuge and asylum – such as families paradoxically locked-out and locked-into ‘Fortress Europe’. We heard the testimonies and disclosures of grief from bereaved family members whose siblings were killed by the police, who years later are still awaiting justice; stories of the institutional neglect of Roma communities who are physically (and often legally) banished to subsist in inhumane conditions – without access to clean water and sanitation; how experiences of institutional racism and discrimination profoundly affects the mental health and wellbeing of South-East Asian children and young people; and how racially, socially and economically marginalised children and young people are bearing the brunt of climate injustice within Europe, contrary to what a white-led, middle class, Eurocentric climate movement tells us.

Yet, despite the sharing of these experiences, defiant hope was visible that to struggle is not our destiny. The conversations also identified many opportunities for action, including using litigation as a strategy toward systemic change. Participants expressed support for one another and solidarity between different organisations and movements. There was a desire to connect the movements and campaigns that taking place across different communities, cities and countries of Europe – to collaborate, and to grow and learn from one another.

We’ve shared the analysis and findings of the consultation process for everyone to use: you can find them on our website under an open-source license, in English, French and Spanish. An audio version is also available. Our hope is that the analyses, materials, and infographics are useful for campaigners, institutions, and policymakers, and for directing more resources towards the work that needs it the most. Work that needs it the most according to communities themselves.

Building on our first community consultation, we have now begun our second project of Revisiting Systemic (In)justices across Europe. The next steps for the project will involve focusing on the regions and communities that were under-represented within the first report, and exploring the often-concealed harms of technologies that compound and exacerbate pre-existing injustices.

You can expect the next report in June, so stay tuned!

3.???? The role of technology

In all issues we take on, we are taking an intersectional approach and address challenges across the digital and non-digital context .?

We cannot separate society’s power structures from the technology it (re)produces. Anything we build reflects and – in the case of tech – amplifies the inequalities we choose to maintain. This means that addressing technological manifestations of racism, ableism, misogyny, homophobia, transphobia, etc. only means mere symptom fighting, not challenging root causes.?

Systemic Justice works across the digital and non-digital context as the separation between the two is a fiction.

Take free movement, for example. People on the move are often the “testing ground ” for new technologies and digital policing techniques. The use of digital and data-driven technologies to control migration has been referred to as the “rise of digital borders” and is an ever-increasingly important aspect of “fortress Europe”.? The technologies used at borders, including facial and gait recognition systems, retinal and fingerprint scans, ground sensors, aerial video surveillance drones, lie detector tests, and biometric databases, reinforce the colonial and imperialist practices that form the historical basis of border management across the globe. Furthermore, with data-driven technologies, borders are no longer confined to the boundaries of a country, but they instead attach to people, resulting in their continued oversurveillance and over policing. ?

Policing is another example. Institutionalised racism is rife in law enforcement in Europe. Just as racial profiling occurs on a daily basis in non-digital policing measures and techniques, such as stop and search , it has been encoded and embedded in the design and use of data-driven policing technologies such as facial recognition , automated number plate recognition , speaker and gait identification , and mobile fingerprint technology . Furthermore, digital technologies increase the existing oversurveillance of certain groups and communities across Europe. This underlines the importance of taking an intersectional approach to examining these issues. For example, many European jurisdictions strategically target police-defined “gangs.” This sees further surveillance and policing being directed at young men in particular, with the unlawful “Gangs Matrix” in the UK having been described as a “continued assault” on Black men and boys by the police .?

By working across the digital and non-digital context and not labelling ourselves as a “digital rights” organisation (or not), we are actively resisting a tech-centred narrative and the inclination of looking at tech in isolation, which often includes narratives around neutrality, objectivity, and efficiency. This includes not going along with the frenzied debates on whatever piece of tech is the hype of the moment – right now everyone is still deeply enthralled by AI while lives can be just as easily destroyed by a simple formula in a spreadsheet – or buying into the narrative that technology can be “fixed” to be less harmful.

The EU’s approach on “debiasing” inherently harmful technologies, as opposed to recognising that tech fits into broader systems of discrimination (such as discriminatory policing) and trying to reduce harm in those contexts (such as through accountability frameworks) fits in neatly here. The aim should not be to make harmful technology slightly less damaging. Instead of debating technical solutions, the conversation needs to be about power structures and taking an intersectional approach to how we analyse and address their impact when technology is involved. Of whatever kind.

4.???? Resisting systemic injustices: the role of strategic litigation

The focus of Systemic Justice’s work is litigation – strategic litigation, to be exact – and how it can be harnessed effectively by those resisting systemic injustices.?

The first question to address before we continue is: what is strategic litigation??

Not all litigation is strategic: there are countless cases filed, decided, and settled every day that are of vital importance only to the people directly affected by them. Strategic litigation, however, is a court case that brings about structural change in regulation, policy, or practice. There are three main characteristics that make a case strategic:?

One, the case is aimed at bringing about systemic, structural change. Looking at a situation of injustice, you will often find when looking at it through a legal lens, that it qualifies as one of three situations: there is harmful regulation in place, there is no regulation in place, or regulation is being applied in the wrong way (or not at all). It is these bigger challenges that strategic litigation takes on.?

This ties in with criterion number two, which is that the impact of the case goes beyond the parties directly involved in the case. It is not, for example, only the person or persons filing a case who will be affected by its outcome, but many others like them, and sometimes bigger groups or even populations.?

And finally, characteristic number three is that the case is part of a wider strategy or movement. A strategic case does not stand alone: it works in tandem and synergy with other tactics, such as advocacy, campaigning, and policy work. No matter what some lawyers may like to think, systems change cannot be achieved through filing legal briefs alone.?

The systems of oppression in our societies disproportionately impact those who are racialised, disabled, poor, or otherwise marginalised. Yet, despite all the litigation activity we might see around Europe, there is a near-complete absence of cases that take an intersectional perspective or even just concern the communities that are working hardest to resist systemic injustices. Let alone that they are able to initiate the cases they want, set the objectives they choose, or seek the remedies that are meaningful to their context.?

This is what we are working to change with the community-driven litigation approach we’re building at Systemic Justice. Rather than working with the traditional “law first” approach, communities are driving the work that we help make happen as the movement’s law firm. With this approach, we are currently building cases to challenge environmental racism, resist polluting activities on communities' doorsteps, challenge racist exclusions from education, push back on the negative fallout of gentrification, and much more.?

I mentioned earlier that strategic litigation is one of the many tactics we need to deploy in fighting systemic injustices. So if it is just one of many tools in the toolbox, why would anyone want to invest in it??

Let me first set out what strategic litigation will not give you.?

It will not give you quick solutions. All of the big “landmark” cases everyone will be familiar with – the recognition of same sex marriage, the recent legal victories on climate – are built on losses and decades of sustained campaigning. To use a negative example that we are all familiar with: the overturning of Roe v. Wade in the US started the moment that judgment was handed down in 1973 – a perfect illustration that sustained investment works. Also for bad.?

Strategic litigation will also not give you a solution to everything. It is just one part of puzzle, not one fix for all the challenges we’re facing. We need that tapestry of activism to build a broad front of resistance.?

Finally, it will not provide you with a cheap fix, especially if you want lasting, systemic impact. Systems change requires a longer-term lens and robust resourcing. This applies all the more so if you want to ensure communities are supported in full.?

But: investing in strategic litigation will do the following.?

Litigation can serve as a catalyst for campaigns: it can enhance their visibility, sharpen the focus of campaigns, and thrust them into the center of public debate. It can form a point of gravity around which action can be coordinated, and it can serve as the ultimate public record of those issues that need to be on the political table. Ultimately, whether this happens through the courts or another channel, it can help push an issue towards that tipping point we need to reach for a true paradigm shift.?

If done in the right way, it can also enable communities to take control and fight their own causes on their own terms. Importantly, it offers them routes to enforceable remedies and concrete decisions, from court orders to reparations.?

And, third, litigation will help hold those who hold (political) power to their promises, and ensure that the systems we already have – climate regulation, human rights frameworks, corporate and tax regulation – work as they should.??

In the end, it comes down to realising that access to justice in and of itself is crucial. Courts should not be limited to only hearing the causes of the rich and privileged. Without communities driving litigation, only those with money and power will be driving through their kind of change and setting the agenda of the courts.

5.???? What we can all do

Our battle doesn’t end with the courts, and it shouldn’t: we should build a world where such extraordinary efforts by groups and individuals shouldn’t be essential to getting our systems to work equitably. Especially not when those expectations are placed upon them without any commensurate resourcing. With many support systems our government and public institutions should be providing, it falls to civil society to address the fallout without anyone ensuring that they have adequate capacity, resources, and expertise to do so fully.

What follows are some reflections on what else can be done to move towards a future of collective liberation.

First, we need to urgently depoliticise equality and non-discrimination work. The framing of this event "gender equality and non-discrimination" underlines how the current, apolitical, and not truly intersectional approach does a disservice to how inequities and systems of oppression actually play out in our societies.

Taking a very frank look, the EU’s equality approach currently shows:

• Surface level engagement with intersectionality – and, importantly, one that – contrary to the public’s understanding of the term – ignores race; and
• A binary approach to gender – much of the approach is based on ‘equality between women and men’ (such as the equal pay directive), rather than the oppression and violence faced by racialised people and migrants of all genders.

This means that the EU equality framework overlooks issues such as the following:

• Institutionalised discrimination against certain people by both the EU and its member states. For example, a topic that was mentioned several times in our community consultation process was the litigation challenging a ban on head coverings, which a number of the activists I spoke with thought should have been framed as, or at least also been framed as, a racism issue instead of only one of religion.
• Institutional violence by member states in law enforcement, with lack of accountability. Here, I can reference some statistics from the Netherlands, collected by the NGO ControleAltDelete , as an example. In the Netherlands, people with a migration background are 11 times more likely to meet their death when encountering the police. By contrast, for Black Americans, the country most people think of when hearing “lethal police violence” this factor is 2.5. Men with a non-Western background are twice as likely to be checked by police, young people with a migration background are twice as likely to be suspected of a crime than young people without a migration background, and have a 10-12 times higher chance of ending up in detention. And yet, of the average number of complaints the Public Prosecutor’s office receives on an annual basis, 99% is dismissed.
• The discrimination formally implemented by the EU in the migration context, which at the moment is not included in equality initiatives due to the lack of including nationality as a ground in EU discrimination law?

All of these are examples of limits to the extent to which EU structures can truly say they address structural and intersectional discrimination. So what can we do to change this? I have some thoughts to share for civil society, equality bodies, and the EU institutions and its members states.

Civil society, including EU umbrella organisations can:

• Bring a truly interconnected and intersectional approach to their work: how are you framing issues of systemic discrimination? Is the framing you are adopting doing a disservice to how systems of oppression and inequities play out in practice? The type of framing that is used for this event, for example, can centre and even elevate white feminism.
• Critically reflect on who is represented under your “umbrella" and who you are truly serving and centring in your work. Membership organisations and other NGOs need to ask themselves the critical question if they are putting cause over community. Now we often see a lack of proximity to the issues and the problems organisations say they care about, resulting in abstract and disconnected efforts for “freedom,’ “human rights,” “equality,” and “justice.” This is not an academic exercise: we are talking about people seeking liberation, reparation, and healing. People are fighting for survival.

Equality bodies can:

• Improve how consultation and participation in their activities takes place and interrogate who they are serving in their current approach and priorities.
• Apply a truly, all-round intersectional approach in your decision-making/case work, not shying away from putting race firmly within the frame.
• Take cases on behalf of under-served communities when they want you to, and on their terms.
• Provide meaningful oversight of the government, state bodies, and public authorities in cases of structural discrimination.
• When collecting and presenting evidence of systemic discrimination, avoid replicating or even entrenching harms caused by the structural oppression and inequity that exists in our society. The over-policing and oversurveilling of racialised communities, for example, can be reproduced when collecting, processing, and presenting disaggregated data.

Commission /EU institutions/member states also have a role to play:

• The future of non-discrimination relies on a structural, inter-connected approach to equality and justice. Tackling discrimination against minoritised groups in education and employment is indivisible from issues of racial profiling and discriminatory migration policy. There must be a connected approach, which includes:- a commitment to safety of broader groups in gender policy – including racialised people, queer people, sex workers.- an accountability framework for those subject to discrimination and violence in law enforcement and migration.
• Take more cases on racial, social, and economic justice issues, particularly since the standing requirements before the CJEU makes it difficult to do so.

A final recommendation for all of us is to fully connect and engage with the fact that nothing stands in isolation. I spoke about intersectionality and the interconnectedness of issues and the interlinkage of tactics: the same applies to the topic of this seminar: equality.

Equality, as everyone here well knows, is one of the EU’s founding values alongside human dignity, freedom, democracy, rule of law, and human rights. All of these values are interconnected. And how the EU positions itself in one context stands in direct connection with how it shows up in others.

In 1977 the Combahee River Collective stated: “If Black women were free, it would mean that everyone else would have to be free since our freedom would necessitate the destruction of all the systems of oppression.” The dismal data in the October report by the Fundamental Rights Agency on “Being Black in the EU ” shows that we are far removed from this. The EU’s complicity in the genocide being committed against the Palestinian people shows the same.

Everyone in this room, everyone who is working in service of an institution that should be rooted in human dignity, freedom, democracy, equality, rule of law, human rights; everyone who is a human being; needs to look deep inside themselves and ask if they are doing enough to stop the most egregious crime against humanity.

We need not only reflect: we need to act. The human rights framework we are all upholding today, including the Universal Declaration of Human Rights whose 75th anniversary is celebrated just over a week from now, and the European Convention that all EU member states are party to and the EU is about to sign on to, is rooted in the “never again” sentiment that was so commonly felt after WWII. It is our duty, as lawyers, as human beings, to fulfill that promise.

Audre Lorde wrote that “Your silence will not protect you.” Nor will our inaction. And history will judge us on both.