Can Anti-Discrimination Be More Discriminating?
Damon Linker would like it to be.
For far too many contemporary liberals . . . informal, grassroots pressure from civil society never seems to be good enough. Too lazy and impatient to do the hard work of formulating arguments and trying to persuade, and too addicted to sanctimonious displays of moral righteousness, these liberals now prefer to use the ever-expanding edifice of anti-discrimination law to impose edicts from the top down.
Such liberals get to enjoy the satisfaction of reenacting the civil rights movement every few years, holding up victims of ever-new forms of discrimination as heroes of a great moral saga and demonizing those on the other side as bigots. Once the courts accept the narrative, the logic of anti-discrimination locks in, new rights become codified, and the former victims of injustice get to enjoy total victory while decades or centuries of communally based norms, practices, and beliefs get pulverized.
All for the sake of bending the arc of history a few more millimeters toward justice.
This is apropos of the Obama Administration’s decree that schools must allow transgender children to use the bathroom assigned to the gender with which they identify or face a loss of funds and possible legal action. Linker identifies multiple reasons why this action may have been unnecessary: the number of people affected is tiny; the country has far more pressing issues on which to spend political capital; the risk of a backlash against overweening federal authority is real; and there has been little organized opposition to such change where it has taken place voluntarily, and where there has been (as in North Carolina), there has been a robust response from the business community and other segments of society that would likely result in a practical victory without the need for a federal diktat. He concludes, therefore, that the administration made a mistake in taking on the issue as it did.
But I’m puzzled as to how, within the framework of anti-discrimination law, such a political mistake, if it is one, could be avoided? The fact that a small number of people are affected by the issue is irrelevant to the law. Ditto the risk of political backlash. Ditto whether other issues are more important. If this is a legal question, then the only pertinent one is what the law requires, not whether unaffected people think it’s worth spending time on.
Of course, I’m being overly schematic. The government always has a variety of ways of avoiding tackling an issue if it chooses – and so do the courts. The administration could certainly have passed this particular buck around in circles for months without saying anything. But at some point they would have to speak – and answer a question that had been asked. Nothing they could say would magically unask it.
So, however long they hypothetically might have waited to come to a conclusion, to avoid the conclusion the administration did come to, you’d have to accept one or more of the following three propositions:
Either you have to argue that transgender people don’t deserve protection against discrimination because they aren’t a category of people deserving of protection – presumably on the grounds that you can’t “be” transgender, but are only suffering from a delusion. This is, obviously, not a neutral position – it’s an active rejection of the most fundamental claims that transgender people are making about themselves. Which doesn’t mean it’s wrong! Those fundamental claims are very novel, and it would be the height of folly to call them settled and indisputable just because some people feel very strongly about them. But those people are the transgender people themselves, so their claims cannot be casually dismissed either, as many of those alarmed by their novelty seem disappointingly inclined to do.
Or you have to argue that there is a good policy justification for discrimination that has nothing to do with invidious intent. For example, you could argue that biological girls in a locker room might be traumatized by the presence of children who identify as girls but have male anatomy changing with them, and that the protection of their well-being overrides the need to accommodate trans girls in the same locker room. This is an entirely reasonable stance to take – by which I mean it is an appeal to reason, and can be argued against in reasonable terms. But it is also not a neutral position, inasmuch as it affirmatively concludes that discrimination against transgender people (in these narrow circumstances), is rational. If you wonder how such a conclusion would be perceived, at the time or in the light of history, take a look at how “Don’t Ask/Don’t Tell” played out. Pitched as a compromise and a half-step forward, it was universally understood at the time as a profound setback for gay servicemen and women, and its practical effects fully bear out that negative understanding. Coming to this conclusion, in other words, wouldn’t merely be declining to bend the arc of history a few millimeters toward justice – it would be bending it the other way for a bit.
Or you have to argue that the force of anti-discrimination law in principle can only be brought to bear when the harm exceeds some threshold, and not merely when you can prove that there is discrimination that is invidious. This is also an entirely reasonable stance to take. But to be a neutral position, this higher burden cannot be confined to novel claimants like transgender people. It necessarily implies that racial, religious and other distinct groups would have to clear the same higher hurdle to receive redress for discrimination against them.
Linker says he sees no problem with letting transgender kids use the bathroom they want, so he’s not advocating the first or second position. I doubt he’s spent a lot of time thinking about transgender issues – but neither have I, and so what? Frankly, I doubt that most people on either side of the debate have spent more than a few minutes thinking about these issues. And that’s fine – people should be allowed to think about, and not think about, whatever they want. If a problem presents itself to them directly, then they have to think about it, and we get to find out whether they think about it sensitively or not.
“And what if a given community doesn’t think about it sensitively?” is the question that exercises Linker. He thinks the answer – at least in this case – should be: well, them’s the breaks. Or, rather, that’s the price of subsidiarity, of moral and practical maturity and independence. From the outside, you can complain, and protest, and try to persuade people to change their mind. But if you are a self-governing community, you have the right to get it wrong. And, presumably, you have the right to keep getting it wrong even after time passes and the world changes, if that’s your cussedly stubborn preference.
That’s a habit of mind that went out not in 2016 but in 1964 – for extremely good reasons at the time. If liberals like Linker think those reasons aren’t so good anymore – and there’s certainly a case to be made that they aren’t – then they should argue the case. I don’t see that happening any time soon.