Anti-discrimination policy actors and their use of litigation strategies: the influence of identity politics

Abstract

Paralleling the institutionalization of human rights in European Community (EC) law is a growing body of literature on the use of strategic litigation by policy actors to expand or enforce those rights. Until recently however, relatively little scholarly attention has been paid to the full range of factors which influence the use of strategic litigation by organizational actors. This paper assesses existing explanations of strategy choice and finds that the emphasis on political and legal opportunity approaches and resource-mobilization explanations has led to a neglect of other, potentially important, variables. I aim to remedy this gap in the literature by suggesting that the identity politics and framing processes of a social movement may play a significant role in influencing the take-up of a litigation strategy. Case studies of the disability movement and the lesbian and gay movement in the United Kingdom illustrate how these variables can shape strategy choice.

Keywords:

• Human rights
• interest group
• legal opportunity
• political opportunity
• social movements
• strategic litigation

Acknowledgements

I am grateful to Katrin Auel, Dan Kelemen and Tim Hicks for advice on earlier versions of this paper. I thank the anonymous JEPP referees for their helpful comments.

Notes

This classification represents ideal types and is potentially less useful when considering organizations which are multifaceted in character, organizational form, resource base and/or membership. These types of organizations, for example Greenpeace, are presented with particular challenges and opportunities in strategy choice. While they potentially have greater resources than groups which are purely ‘unconventional’ because of a broad-based ‘credit card membership’ which pulls in resources and allows them to engage in a wide spectrum of tactics ranging from direct action to litigation (Hilson 2002), they must also balance the demands of different parts of the membership. For a fuller discussion of the heterogeneity of organizational forms adopted by social movement activists, see Rao et al. (2000).

Council Directive 2000/43/EC of June 29, 2000; Council Directive 2000/78/EC of November 27, 2000.

The DRC and the other equality commissions wrapped up their work in September 2007 when the single equality body, the Commission for Equality and Human Rights, was established.

Local Government Act 1988 (c. 9). Accessed on December 12, 2007 at http://www.opsi.gov.uk