Human rights have, for many decades now, been a central concept in cultures that embrace the idea of the sovereign individual. When the individual is understood as ensconced within a sphere of liberty, there are necessarily hard limits upon the power of the state to make incursions into that sphere. What a person believes, says, wears or does is prima facie no business of the state. That means that it is no business of a person’s fellow citizens either because, while the state appears in a multitude of guises, there are always fellow citizens under the hood.
Human rights claims are just one framework through which to understand interpersonal conflict, therefore the most important mechanism for adjudicating upon them is proportionality. Proportionality has roots in Prussian and German law, but has come to play a central role in European jurisprudence and in constitutional jurisprudence worldwide. Its central principle is that in exercising power — including making incursions into rights — the means used must be proportional to the ends sought, i.e. one may not use a sledgehammer to crack a nut. In the context of human rights, this means that adjudication necessarily entails careful consideration of the interests of all involved.
Notwithstanding the lofty metaphysics surrounding human rights, the nitty gritty adjudication of rights claims is inescapably pedestrian because it comes down to the age-old activity of balancing competing interests—something familiar to anyone who has been married, or has had any kind of relationship with another human being. While the symbolism of the scales of justice is old, it is not nearly as old as the psychology underpinning it.
The European Convention on Human Rights provides a good illustration of how proportionality is intrinsic to human rights. Consider Article 9:
ARTICLE 9: Freedom of thought, conscience and religion
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The first clause sets out the right itself, while the second clause delineates the situations in which incursions into the right are proportionate and therefore lawful. For an incursion to be proportionate, it must be 1) prescribed by law, 2) necessary in a democratic society and 3) serve one of the listed purposes.
The structure of the right is such that neither a person insisting upon her religious freedom, nor a person insisting upon limits to that freedom can reasonably expect that things ought to automatically go her way. The law, in that sense, reflects life more generally.
Jurisdictions which don’t acknowledge the role of proportionality as clearly as the European Convention on Human Rights does here, nevertheless fall back on it during the balancing process, employing the customary semantic formulae of constitutional decision making. The title of David Beatty’s 2005 book, The Ultimate Rule of Law, alludes to proportionality, upon which, Beatty argues, judges worldwide have converged as “a framework of analysis.” He finds proportionality in operation in constitutional courts from Japan to Germany, from Hungary to the US, Australia and beyond. This convergence on proportionality as a “universal criterion of constitutionality” is a consequence of its inherent rationality and fairness. As Beatty notes,
When it is applied properly, proportionality requires judges to assess the legitimacy of whatever law or regulation or ruling is before them from the perspective of those who reap its greatest benefits and those who stand to lose the most.
Proportionality is a leitmotif of conflict resolution in constitutional courts, because it is a leitmotif of human conflict resolution.
And yet the compromise inherent within proportionality has recently fallen out of favour. Alternative concepts, such as diversity, inclusivity, intersectionality and affirming people’s identities, are in the ascendant. The problem is that these concepts have not proven to provide coherent ways of resolving conflict, not least because, in our increasingly pluralistic societies, there is a decreasing likelihood that we will share roughly the same set of values as our neighbours.
The incommensurability of norms that a diverse political community can generate was illustrated last year by a conflict at Parkfield Community School in Alum Rock, Birmingham, UK. The school was implementing a curriculum called No Outsiders, aimed at teaching children to accept social differences. Many parents protested the curriculum on the grounds that it amounted to indoctrination. The majority of those parents were Muslim and, therefore, held more traditional views on sexuality and gender than the British population as a whole. Fatima Shah, for example, stated:
We have no problem with the Equalities Act, we have no problem with them teaching them British values, but this is not teaching them British values, this is promoting homosexuality, this is confusing children.
Children are coming home, girls are asking whether it is true they can be boys, boys as young as four asking whether it is true we can be girls. There is no need for it.
West Midlands Police had to be called in. Homophobic graffiti was painted on the school, and a viral video of one of the protests included chants like Telling people that it is okay/For you to be gay. Shame. Shame. Shame. Shame. and comments like “This programme is very toxic. Not only are we aiming to have it abolished in this school, we are going to have it abolished in every school in the country.”
This perfect storm of twenty-first century identity politics raises a challenge: in a diverse democracy like Britain (where public schools are often faith based) what ought the content of a syllabus on sexuality and gender to be? More generally, how are we to resolve the incommensurability of diverse normative beliefs?
Concepts such as diversity and affirming people’s identities do not offer answers to this question: they simply restate the problem—as does the concept of inclusivity. The concept of intersectionality does not offer a solution either: both groups involved are recognized as subjects of oppression and therefore to be favoured in an intersectionality calculation. None of these ideas can resolve conflict in a pluralistic society.
Proportionality focuses on the ways in which a compromise can be reached. It is not a magic formula—but there is no magic formula. In the Parkfield Community School case, there is room for compromise on both sides. The No Outsiders curriculum upholds values—such as same-sex marriage—that are established in law and well settled in British culture. However, it also makes newer claims about things that are nowhere near settled in law or culture: for example, that a four year old can change gender. This spectrum of claims offers room for compromise.
Some of the protestors accept that it is appropriate to teach British values. Obviously, the devil is in the details here, but this categorically rules out the idea that the protestors should get to unilaterally determine the content of the curriculum in that school or elsewhere. Again, there is a spectrum involved here, and, in a society in which proportionality is a lodestar, it is unlikely that any resolution will approach one extreme of that spectrum.
It is unfortunate, therefore, that our current culture encourages a determined charge out toward the far ends of spectra. The idea of progress may be a contributing factor. It conjures up an image of moving heroically onward in one clear direction. However, almost all ideologies conceive of themselves as progressive—as moving us toward a better world—Nazism, Marxism and Islamism included. Claiming the mantle of progress in no way guarantees that one’s ideology is sound.
Furthermore, the metaphor of the onward march of progress leaves open the possibility that the movement will get out of control, becoming vulnerable to the most dogmatic ideologues, as well as to charlatans, opportunists and—more fortunately—comedians. The saga of Jessica Yaniv and her complaints against immigrant women who refused to wax her male genitals has amply demonstrated this.
As Yaniv found out, in court, it’s not enough appeal to the intensity of one’s subjective experience. If a court has been called to adjudicate upon something there is, by definition, more than one party involved, and the court must consider the arguments put forward by all parties to the conflict. Even an institution such as the British Columbia Human Rights Tribunal—which is perhaps primed to be ideologically sympathetic to claimants such as Yaniv— is still constrained by the structure of adjudication.
That structure is set out in Paragraph 12 of the BCHRT judgment in the Yaniv case:
The analysis proceeds in two parts. First, the burden is on Ms. Yaniv to establish that each Respondent denied her a service which they customarily provided to the public, and that her gender identity was a factor in that denial: Moore v. BC (Education), 2012 SCC 61 at para. 33. If she does so, the burden shifts to the Respondent to establish that the denial was bona fide and reasonably justified. If it is justified, there is no discrimination. This is the analysis that I apply to Ms. Yaniv’s genital waxing complaints.
There it is, the age-old structure of a competing rights claim. Question one: are the claimant’s rights affected; question two: if so, can that be justified? Look at it from the claimant’s perspective, then from the defendant’s perspective, and then provide a rational determination. The question isn’t whether the claimant’s identity has been fully affirmed—if it were, the legal standards would be set by the most extreme members of the political community.
In the Yaniv case, it was found that none of the defendants who was asked for genital waxing actually offered the service of waxing male genitals, so Yaniv wasn’t denied that service. In other words, the complaint was dismissed under question one, and the issue of proportionality didn’t even come into play.
There were, however, two defendants from whom Yaniv had requested arm and leg waxing, not genital waxing. One of them participated in the hearing and sought to justify her refusal to wax Yaniv on the basis that, when she began her business, she had made an agreement with her husband that she would not provide services to men. That agreement came from the family’s religious beliefs (they are Sikh), which, they testified, prohibit a woman from touching the body of an unknown man. The tribunal found that “it was clear from their testimony that Mrs. Hehar and her family consider a transgender woman to be a man for the purposes of their religious and cultural rules.”
In the arm and leg waxing complaints, question one, discrimination, was established, and the court would have had to move on to question two, proportionality, to reach a decision. However, those complaints were dismissed because the tribunal found that Yaniv was motivated by personal financial gain and animus toward immigrant women. She was using the tribunal process to expose what she saw as the bigotry of immigrant women, whom she regarded as having a very negative impact on transgenderism, and as failing to assimilate into Canadian culture.
Stripped of these aggravating factors, the question would have been whether sincerely held religious and cultural beliefs could justify refusing to wax a trans woman’s arms and legs. The point was moot in this case, but it is the courts that ultimately have to make the call on cases that don’t admit of obvious answers. An approach based on proportionality is the most coherent and legitimate way to do so. It is inherently moderate because it takes into account competing perspectives.
That moderation fits with the broader picture of common law, which is necessarily slow moving. Inductive reasoning—i.e. taking the narrow facts of the case in hand as a starting point, rather than broad overarching principles—helps preserve the legitimacy of courts within democratic society and nevertheless allows for a sense of progression over the years. When we pan out far enough, we can see that there is indeed a moral arc which bends towards justice, or, if you prefer, bends towards particular trends of cultural development.
Jessica Yaniv is not representative of trans women. Some very articulate trans women advocate an approach to trans rights that takes account of the rights of others, i.e. that proceeds from a spirit of proportionality. See, for example, Debbie Hayton’s work, arguing that the rights of biological women must be part of the conversation. In the UK, that has become an increasingly brave stance, as any critical discussion tends to be labelled as transphobic and hateful.
Many mainstream politicians have held an ultra orthodox line on this, much more in the spirit of Jessica Yaniv than of Debbie Hayton. The Liberal Democrat party, for example, recently informed a bisexual, non-binary person who describes herself as gender-critical—i.e. as believing that it is not possible to change one’s biological sex—that “it appears your values are not aligned with ours.” Their diversity team explained, “As liberals we champion everyone’s right to live the life they want.”
The idea that it is possible to champion the rights of everyone is delusional, though — it implies you can be either for rights, or against rights, either on the side of the goodies or of the baddies. The briefest of glances at human rights law reveals that the reality is competing interests all the way.
That simplistic delusion is underpinned by the notion that society can, and ought to, affirm and endorse every person’s identity. In a diverse society, that is simply not possible. What we can and ought to expect from each other is tolerance, compassion, compromise and non-violence. Beyond that, is it really necessary—never mind possible—that we converge on one universal set of norms and values?
Perhaps there can be friendship between people who do not hold identical sets of norms and values, who, in the parlance of identity politics, do not fully affirm each others identities. Consider here the discussion between Dave Rubin (secular and in a same-sex marriage) and Ben Shapiro (an orthodox Jew) about the fact that Ben would be happy to bake Dave a regular cake, but not a cake to celebrate his wedding or anniversary. Dave is not offended by that — he just doesn’t care. That Ben considers Dave’s lifestyle to be sinful, does not prevent their being friends or engaging in lively and enriching debate.
Ben and Dave have converged upon a meta-norm: namely, that it is not necessary to agree upon lesser norms in order to live in peace. This meta-norm is well established in the post-reformation west as regards theological matters. It is nowhere near established as regards secular matters. In fact, tolerance of dissenting opinions seems to be waning, replaced by the crusading, jihadist zeitgeist that has given birth to Jessica Yaniv.
In 2017, Tim Farron resigned as leader of the UK’s Liberal Democrat Party because he had become “subject to suspicion” on account of his Christianity. Despite a strong voting record of support for same-sex marriage, during the general election campaign Farron was repeatedly asked in media interviews whether gay sex was a sin. He attempted to avoid discussions of conscience, but his answers were deemed unsatisfactory. His external support of everyone’s right to live out their sexuality as they choose was not enough: he was required to hold a particular internal position.
For the sixteenth-century monarch Elizabeth I, it was enough for her Catholic subjects to outwardly accept her Protestant realm: she wisely noted, “I do not wish to make windows into men’s souls.” Twenty-first century identity politics—for all its commitment to diversity and inclusivity—has forgotten that Elizabethan wisdom.
We need a reformation to lead us to a world in which we can peacefully agree to disagree about secular matters. Even in that world, there will be clashes between the rights of individuals. It will continue to be the role of the courts to adjudicate upon those finely balanced cases. Thankfully, the age-old mechanism of proportionality will help them reach fair, reasoned conclusions. For, although rights, at first glance, may seem to be about the gloriously sovereign individual, at second glance, that individual is ensconced not within a sphere of liberty, but within a community. And proportionality is a sine qua non for community.
The London Employment Tribunal has since handed down a preliminary ruling in the Maya Forstater case, to the effect that a belief that biological sex is immutable is not a “philosophical belief” for the purpose of the Equality Act 2010, because it is not worthy of respect in a democratic society.
The judge expressed concern that the issues were not necessarily appropriate ones for a preliminary hearing and indicated that the line between holding a belief and harassing others might have been blurred (see paragraphs 74 and 75). The case will no doubt make its way to the appeal courts and warrant further analysis, but I’d like to highlight three points it raises.
Firstly, I suspect the interesting issue on appeal will be the basis on which a judge can reach a conclusion that a particular belief is not worthy of respect in a democratic society. At the beginning of January 2020, a different employment tribunal judge ruled that ethical veganism is a protected “philosophical belief,” worthy of respect in a democratic society. The claimant in that case makes decisions such as walking rather than taking a bus, in order to avoid accidental crashes with birds or insects. The question is how judges avoid letting their own philosophical beliefs affect decisions about which beliefs are worthy of respect in a democratic society. Presumably, in a diverse, pluralistic society, the range of acceptable beliefs will be very wide indeed, if judges successfully set their own beliefs aside.
Secondly, the Equality Act expressly provides for a proportionality calculation, which would come into play when the interests of biological women and trans women are in conflict. This, the judge concedes, may be applicable in respect of things like sport and refuges for victims of sexual assault (see paragraphs 79 and 80 of the judgment).
Thirdly, there is a contradiction between the idea that Forstater’s beliefs are not worthy of respect in a democratic society and the recognition that the statute allows for a proportionality calculation when the interests of biological women and trans women are in conflict. In that respect, the judgment is both confused and confusing (and riddled with typos). This reflects the broader confusion in our societies as to what we can realistically expect from rights. The traditional, proportionality-centred approach creates an expectation that each side of a conflict will be given fair consideration and that the decision reached will be rational and consistent. The newer, identity politics based approach creates an expectation that a claimant’s own sense of identity will be fully affirmed by the rest of society and, where it is not, that appropriate restrictions on speech and belief will be enforced by law. The newer approach promises way too much and is consequently authoritarian and unbefitting of a democracy. It is also incoherent, particularly in the context of adjudication, the very structure and purpose of which is to mediate between competing interests. For that reason, the Maya Forstater preliminary ruling notwithstanding, I stand by my thesis that the courts will save us from the wackiest of the woke.