The recent human rights litigation by transgender woman Jessica Yaniv has sparked outrage across British Columbia, Canada, and even internationally.
Quite rightly, moderate people of every political leaning find it distasteful that a law and a tribunal could be used to force a woman to do a very intimate act.
Although most people find the scenario outrageous, it is most often right-leaning folks who will use this predatory litigation as an argument that the human rights tribunal should be abolished.
They often argue that it is unjust to create rights that force people to do things for other people, that discrimination will be dealt with by the free market, or that constitutional rights are sufficient to have a fair and free society.
I would argue that the BC Human Rights Tribunal has an important mandate that can lead to a net gain for society. Although I disagree with the conclusion that the tribunal should be abolished, the people who advocate for that position have valid critiques that can be used to improve the Tribunal.
I will attempt to layout those critiques in order to make a path to getting the BC Human Rights Tribunal back on track.
What the BC Human Rights Code does
The BC Human Rights Code protects individuals on the basis of several unchangeable characteristics from discrimination by other individuals. The protection from discrimination is limited to several different areas of life, which include:
- Purchase of property
- Provision of services
Human rights are different than constitutional rights. Constitutional rights apply only to the government, meaning that other individuals are not bound to protect your freedom of speech.
Furthermore, constitutional rights generally just restrict the government from doing something (like establishing an official religion, or limiting your speech), rather than forcing the government to take positive action.
We call this a negative right. Constitutional rights exist in the Charter of Rights and Freedoms, which is part of the constitution.
Human rights codes are fundamentally different. First, they are not part of the constitution. They are just a regular provincial law passed by the majority of your provincial representatives. Furthermore, they don’t create rights that people enforce against the government, but rather rights that individuals enforce against each other.
Lastly, human rights aren’t just negative rights. They create positive obligations that may require an individual to take a specific action. We call these positive rights.
For example, under the BC Human Rights Code, tenants have a right to be free from discrimination on the basis of their ethnicity when seeking a room to rent. Therefore, a landlord may have a positive obligation to rent a room to a tenant to whom they might otherwise not want to rent their property.
The conservative argument on human rights
Many conservatives would suggest that a person’s rights should focus on constitutional rights. This is because they take issue with how human rights create rights against other individuals, instead of the government, and because they create positive rights against those individuals.
The issue with rights against individuals, as opposed to rights against the government, is that they are a greater invasion of freedom than a negative right.
If another person enforces their right against the government, it typically will not affect my desire to live my life as I choose. It is only the government that is restrained from doing something.
Positive rights similarly have a much larger effect on freedom, particularly when you assert a positive right against another individual. A negative right merely restrains another person from doing a certain thing.
That individual will generally still have a plethora of actions to choose from. On the other hand, positive rights are more invasive because the hand of government forces a person to do something they may not want to do.
Such a situation is highly invasive and antithetical to liberal societies, which generally believe that the government should allow individuals to live their lives as they see fit to the greatest extent possible.
Therefore, for liberty’s sake conservatives often believe that someone should be able to choose how they act, even if their choices are unfairly discriminatory.
Doing otherwise is highly invasive of individual freedom. Conservatives also see discrimination as solvable discrimination. They might say that the person choosing to rent should simply seek another place to rent and that a non-discriminatory landlord will then have the benefit of more demand for their suite.
In short, the argument is that the free market will sort out unjust discrimination because it’s inefficient to be discriminatory.
Balancing significant effects of discrimination with the importance of freedom
One weakness of this argument is that it can unfairly saddle individuals with the burden of unjust discrimination while the free market sorts itself out.
This can be particularly harmful when considering the provision of essential services like employment and tenancy. A person unfortunate enough to live in a certain area or time where their identity group is being widely discriminated against could suffer life-altering consequences as a result of discrimination in which the government does not intervene. In situations like this, it is little comfort to know that the free market will eventually sort itself out.
For this reason, I see a legitimate role for a human rights code that intervenes in cases of discrimination that would have significant adverse effects on the individuals who suffer that discrimination.
This would certainly be the case for essential things such as employment and tenancy. In my opinion, the significant adverse effect avoided for these individuals outweighs the infringement of individual freedom that occurs when we force individuals to provide these services against their will.
However, if we choose to make this sacrifice, it must be done so carefully, understanding the significance of the individual freedom that we are infringing.
The solution: restricting the scope of human rights protections to essential services
I would argue that not all types of discrimination will have an equally significant effect, and so should be treated differently. Some, such as discrimination through speech or the provision of general services, will have a much lesser effect than denying someone tenancy or employment based on a protected characteristic.
For example, Yaniv is free to seek waxing services at any other service provider. The refusal of one person to provide an inessential service like waxing will have no practical effect on Yaniv’s life.
Hurt feelings due to discrimination should not be sufficient to invade a person’s liberty and coerce them into doing something they do not want to do.
Therefore, keeping in mind the significance of curtailing individual rights and forcing individuals to take actions they do not want to take, I would suggest restricting human rights protection to the areas of discrimination that would have a significant effect on the discriminated person.
The two most obvious categories are tenancy and employment, because shelter is a widely accepted human need, and without employment, a person cannot provide for themselves. Other categories, such as the provision of services, do not justify the intervention of and coercion by the state.
This is not to minimize the effect that such discrimination has on the discriminated person. Being turned away from a store or service is not a trifling matter. But it recognizes that the insult to that person is not the only factor at play. The fundamental importance of allowing individuals to act as they wish must only be degraded with the greatest of caution.
Similarly, the expansion of state power to coerce the actions of individuals is something that should not be done unnecessarily. State power often increases but is very rarely rolled back.
One day, after years of steadily expanding the power of the state to force the hand of those with whom you disagree, a government will be elected to which you are fundamentally opposed. On that day, the weapon you helped develop will be swiftly turned upon you.
These concerns can and should be balanced with maintaining a fair society for those who may be discriminated against. The BC Human Rights Code has lost that balance, and that is causing British Columbians to question the existence of the Tribunal. For the sake of both our freedom and the plight of marginalized people, we must act to make our Human Rights Code better.