In Praise of Proportionality: How the Courts will save us from the Wackiest of the Woke.
Human rights have, for many decades now, been a central concept in cultures which embrace the idea of the sovereign individual. When the individual is understood as being 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. As a practical matter that means it is no business of a person’s fellow citizens because, while the state appears in a multitude of guises, there is, in the final analysis, always one or more fellow citizens under the hood.
That human rights claims are, ultimately, just one particular framework through which to understand interpersonal conflict explains why the most important mechanism for adjudicating upon them is proportionality. Proportionality, as an adjudicative tool, has routes in Prussian and German law but has come to play a central role in European jurisprudence and can be observed in constitutional jurisprudence around the world. The essence of proportionality is that in exercising power — including making incursions into rights — the means used must be in right relation to the ends sought, i.e. one may not use a sledge hammer to crack a nut. In the context of human rights this means that adjudication necessarily entails careful consideration of the interests of all involved when seeking a pragmatic and reasoned resolution.
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 act of balancing competing interests. It is an act familiar to anyone who has been married, or indeed to anyone who has had any kind of relationship with another human being. In that sense, 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 illustrates well the way in which proportionality is intrinsic to the structure of human rights. Consider by way of example 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 sets out a semantic formula which 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) for one of the listed purposes.
The structure of the right is such that neither a person insisting upon their religious freedom, nor a person insisting upon limits to that freedom can reasonably expect that things ought to automatically and unquestionably go their way. The law, in that sense, reflects life more generally.
Jurisdictions which don’t reference the role of proportionality as clearly as it is referenced in the European Convention on Human Rights, nevertheless fall back on it in the balancing process and the semantic formulae which are the bread and butter of constitutional decision making. In 2005, University of Toronto professor David Beatty published a book entitled The Ultimate Rule of Law. The rule he was talking about was proportionality, which he argues judges all around the globe have converged upon as “a framework of analysis.” He finds proportionality nestling in the jurisprudence of constitutional courts from Japan to Germany, from Hungary to the U.S., Australia and beyond. This convergence on proportionality as a “universal criterion of constitutionality” is a consequence of it being inherently rational and fair. 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.
One might add that proportionality is a leitmotif in the resolution of human conflict in constitutional courts, because it is a leitmotif in the resolution of human conflict period. One wonders that anyone would ever be able to come up with an alternative approach.
And yet they have, because in the current cultural climate the compromise inherent within proportionality is out of favor. Alternative concepts such as diversity, inclusivity, intersectionality and affirming people’s identities are in the ascendance. The problem is that these concepts have not shown themselves to be coherent ways of resolving conflict, not least because our increasingly pluralistic societies go along with a decreasing likelihood that we share more or less the exact same set of values as our neighbors.
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, U.K.. The school was implementing a curriculum, entitled No Outsiders, which was aimed at teaching children to accept differences in society. Many parents felt, however, that it amounted to a form of indoctrination, they consequently organized protests. The majority of those parents were Muslim and, therefore, tended to hold more traditional views on sexuality and gender than the British population taken as a whole. An example of the way parents voiced their concerns came from Fatima Shah:
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.
The protests went far enough for West Midlands Police to be involved. Homophobic graffiti was painted on the school, and a video went viral of one of the protests in which chants included “Telling people that it is okay… for you to be gay. Shame. Shame. Shame. Shame.” and “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 21st Century identity politics raises a challenging question: In a diverse democracy such as 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.
The concept of diversity itself does not offer an answer, in fact it simply restates the problem. The concept of inclusivity does not offer an answer. It too restates the problem. The idea of affirming people’s identities does not offer an answer. It too restates the problem. The concept of intersectionality, whatever other insights it might yield, does not offer a solution; both groups involved are recognized as being the subjects of oppression and therefore to be favored in an intersectionality calculation. In short, none of these ideas is remotely useful in resolving conflict in a pluralistic society. Thankfully we have an alternative to fall back on. Proportionality.
Proportionality immediately focusses the mind on ways in which compromise can be reached. It is not a magic formula that will produce perfect results, but that’s life — there’s no magic formula at the micro level either, just the boring work of balance and compromise. In the Parkfield Community School case it is possible to detect room for compromise on both sides. For example, it would seem that the No Outsiders curriculum included claims that are established in law and well settled in culture in Britain, an example being same sex marriage. However, it also appears that the curriculum made claims which are newer and nowhere near settled in law or culture, for example, a four year old can change their gender. That there is this spectrum of claims offers some room for compromise on the content of a curriculum.
As regards the protestors, there is at least an acceptance by some that it is appropriate for “British values” to be taught. Obviously the devil is in the details on that, but it is a start, and it would quite categorically rule out the idea that the protestors get to unilaterally determine the content of the curriculum in that school or indeed across the country. Again there is a spectrum involved here, and in a society in which proportionality is a lodestar, it is unlikely that any conflict is going to be resolved toward the end point of a spectrum.
It is unfortunate, therefore, that our culture at the moment seems to encourage a determined charge out toward the far ends of spectra. I wonder if the idea of progress is a contributing factor here. It conjures up an image of moving heroically onward, unencumbered by metaphors of balance and compromise. It is worth remembering, however, that ideologies all tend to conceive of themselves as being progressive - i.e. as moving us toward a better world - Nazism, Marxism and Islamism included. Claiming the mantle of progress in no way guarantees that the substance of one’s ideology is sound.
Furthermore, the metaphor of the onward march of progress always comes with the possibility that the movement will run out of control. At that point it will be vulnerable to the most dogmatic of ideologues, as well as to charlatans, opportunists and - God bless them for their role in all of this - comedians. We see this clearly in the saga of Jessica Yaniv and her bevy of complaints to the British Columbia Human Rights Tribunal (“BCHRT”) against immigrant women who refused to wax her male genitals.
As Yaniv found out, once a matter gets to court, it doesn’t suffice to 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 very role of a court is to consider the arguments put forward by all parties to a conflict. Even an institution such as the BCHRT — 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. It provides:
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. In other words, look at it from the claimant’s perspective, then look at it from the defendant’s perspective, and from there provide a rational determination. The question isn’t whether the claimant’s identity has been fully affirmed, if it were, the legal standards would quickly 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 in the first place so Yaniv wasn’t denied that service. In other words, the complaint was dismissed under question 1, 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 those two 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 “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.”
The arm and leg waxing complaints were ones in which question 1, discrimination, was made out, and the court would have had to have moved on to question 2, proportionality, to reach a decision. However, those complaints were dismissed because the tribunal found that, notwithstanding her motivation to fight discrimination against transgender women, 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 who she regarded as having a very negative impact on transgenderism, and as not assimilating into Canadian culture.
Stripped of the aggravating factors which colored all of Yaniv’s complaints, the question would have been whether sincerely held religious and cultural beliefs could justify refusing to wax a transwoman’s arms and legs. The point was moot in the present case — probably to the great relief of the decision maker — but it is the courts which ultimately have to make the call on closely balanced 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. The inductive reasoning - i.e. taking as a starting point just the narrow facts of the case in hand rather than very broad overarching principles - helps preserve the legitimacy of courts within democratic society. It nevertheless allows for a sense of progression over the years. When we pan out far enough we can choose to see within a constellation of decisions that there is indeed a moral arc which bends towards justice, or, if you prefer, particular trends of cultural development.
It is worth noting that Jessica Yaniv is not representative of transwomen in general. There are some very articulate voices amongst transwomen who are advocating an approach to trans rights which 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 to take, as any critical discussion whatsoever 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 the spirit of Debbie Hayton. The Liberal Democrat party, for example, recently informed a bisexual, non-binary person who described herself as gender-critical - i.e. as believing 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 there is a simple option 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 the side 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. I have given Parkfield Community School and the Yaniv arm and leg waxing cases as examples, but similar instances are all around. What we can and ought to expect from each other, is tolerance, compassion, compromise and non-violence. Beyond that, is it really necessary (nevermind possible) that we converge upon 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 make 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 together.
Ben and Dave have converged upon a meta-norm, namely that it is not necessary to agree upon lesser norms to live side by side in peace and friendship. This is a meta-norm which is well established in the post-reformation West as regards theological matters. It is nowhere near established as regards secular matters. And in fact things seem to be getting worse in terms of an unwillingness to tolerate dissenting and differing opinions. There is, instead, a crusading, jihadic spirit in the air which has given birth to Jessica Yaniv.
In 2017 Tim Farron resigned as leader of the U.K. Liberal Democrat Party because he had become “subject to suspicion” on account of his Christianity. Despite having a strong voting record for supporting same-sex marriage, during the general election campaign Farron was repeatedly asked in media interviews whether gay sex was a sin. He sought to avoid getting into discussions of conscience, but his answers were deemed unsatisfactory. An outward position supporting the right of everyone to live out their sexuality as they choose was not enough, it would seem he was required to hold a particular internal position.
In the 16th Century it was enough for Elizabeth the First for her subjects of Catholic inclination to outwardly accept her Protestant realm; beyond that she wisely noted, “I do not wish to make windows into men’s souls.” 21st Century identity politics, for all its commitment to diversity and inclusivity, lacks that Elizabethan wisdom.
We need a reformation - or perhaps we are undergoing 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 times when there are 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 courts will have the age old mechanism of proportionality to reach fair and reasoned conclusions. For although rights, at first glance, 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.
Postscript
After I wrote this article a preliminary ruling in the Maya Forstater case in the London Employment Tribunal was handed down 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 to deal with in 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 up to appeal courts and warrant further analysis, but I have three points to make insofar as it relates to my article above.
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 to walk rather than take a bus in order to avoid accidental crashes with birds or insects. The question which arises is how first instance judges avoid their own philosophical beliefs affecting decisions about what is and what is not a belief 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 are successfully setting to one side their own beliefs.)
Secondly, the Equality Act provides expressly for a proportionality calculation which would come into play where the interests of biological women and the interests of trans women 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 quite obviously a contradiction between holding that Forstater’s beliefs are not worthy of respect in a democratic society, and recognizing that the statute in question allows for a proportionality calculation where the interests of biological women and the interests of trans women are in conflict. In that respect the judgment is both confused and confusing (and riddled with typos). This I think reflects the broader confusion in our societies as to what we can realistically expect from rights. The traditional, proportionality centered, 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 far 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, 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. More than that, it is 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.
This article first appeared in Areo Magazine on January 8th 2020
