Why constitutional rights should have priority over human rights

Jessica Yaniv has started human rights complaints against 15 or more female beauticians that have refused to provide their waxing services on the basis that Yaniv has male genitalia.

In these cases, human rights are conflicting with constitutional rights. On Yaniv’s side, there is the human right to be free from discrimination on the basis of gender identity, protected in the BC Human Rights Code.

For these women, various constitutional rights are engaged. At least one of the women has made it explicit that she objects to waxing Yaniv’s genitalia on religious grounds.

This woman is Sikh, and she has stated that her religion forbids intimate touching with anyone other than her own husband. This engages her freedom of religion protected in the Charter of Rights and Freedoms.

Of course, religion is not the exclusive source of sexual ethical codes, and so at least some of the other women likely object to handling male genitalia based on their own moral code, whether that be religious in origin or not. These latter cases would engage the constitutional right to freedom of conscience and the right to liberty.

Assuming all of these rights should exist, which one should take precedence in this situation? What principles can we articulate to guide our choice not only in this situation,  but also in others where human rights conflict with constitutional rights?

I will argue that constitutional rights should be given a strong, but not absolute, priority over human rights in situations where they come into conflict.

The legal hierarchy

The first reason that constitutional rights should be given priority over human rights is the respective places of these two types of rights in the legal hierarchy.

The constitution is explicitly recognized as the “supreme law of Canada” in section 52 of the Constitution Act, 1982. Any law that is inconsistent with it is supposed to be of no force or effect.

Our rights found in the constitution cannot be easily changed without substantial agreement between the provinces and federal government. Like any other constitutional amendment, a change requires the support of 7/10 provinces that represent at least 50% of Canada’s population, plus the support of the federal parliament. It is an onerous burden.

These rights are entrenched and made so difficult to change because they are so important. It would be unwise to have these rights merely in a regular law that was subject to change at the whim of any single government.

If that was the case, one government could get elected and decide that it wasn’t fond of something like freedom of the press, or the constitutional prohibition on cruel and unusual punishment. Nazi Germany showed us that even the most terrible parties can get the support of the people from time to time. When that happens, we want our rights to be safe.

On the other hand, human rights are created by an ordinary provincial law passed by a majority of provincial representatives. They are subject to change at the whim of a provincial government with the support of the legislature. The general purpose of these rights is to prohibit discrimination by individuals against other individuals in various spheres of public life.

One would think that the constitutionally guaranteed, nearly unchangeable rights that are recognized as the “supreme law” would be granted a substantial priority over these rights passed by the province and subject to change at the whim of a provincial government. This is not the case.

The Supreme Court of Canada has stated that human rights tribunals may engage in a “balancing” of our constitutional rights with human rights. As long as the balance reached by the tribunal is not “unreasonable,” the decision of a human rights tribunal will be upheld by the higher courts.

This does not make any sense. The provincial and federal governments cannot directly weaken our constitutional rights, but they can do it indirectly by just passing human rights codes that will come into conflict with the constitution. Human rights tribunals can then impede the constitutional right to a great extent when the two conflict.

Therefore, constitutional rights should be given priority simply to follow the hierarchy of laws that we find in most liberal democracies. Canada has put constitutional rights in the category of the most important laws of the land, and we protect that from changing by having the rigorous amendment requirements. It is illogical for us to permit provincial governments to outsource violations of these rights to a human rights tribunal.

Who the right is enforced against

The next reason that constitutional rights should be prioritized over human rights is that constitutional rights protect you from the government, whereas human rights protect you from other individuals.

As I explained in an earlier article, constitutional rights are enforced against the government and only the government. They typically prohibit the government from doing something, like restricting criticism of the government, or discriminating against people on the basis of several characteristics.

In contrast, human rights are rights that individuals enforce against each other, and they often create a positive obligation on another person to act in a certain way. For instance, Yaniv has the human right to be free from discrimination by other people on the basis of gender identity, but the flipside of this is that these women are forced to take the positive action of waxing Yaniv’s genitalia.

Why is this important? For two reasons.

Firstly, the infringement of liberty when forcing a person to take a positive step is very high. When the government is restricted from taking a certain action, we as individuals are still at liberty to take any action we want.

In contrast, when one enforces a human right against another individual using the human rights tribunal, one is using the powerful arm of the state to force another individual to do something against their will.

This is significant in a liberal society, which is founded on the idea that each individual is best suited to decide how to live their life. Behind every state-action is the threat of violent force to enforce the action, which people are obviously powerless to resist.

Using the state to enforce a human right strips all liberty and agency from a person and puts the state in charge of their actions. The threat of force bends the will of the individual. It is a massive infringement of liberty.

The second reason that having a right enforced against the government is important is that government is far more powerful than a private entity.

Consider the effect that a rights violation will have in a basic case of discrimination. The government’s monopoly on many services, including essential ones like policing and healthcare, could result in discriminatory action barring someone entirely from a service. Furthermore, the government’s ability to enforce its decisions through force will result in the discrimination being profound and effective.

In contrast, if a private individual, like a restaurant owner, chooses to discriminate against me for an unchangeable characteristic, I am at liberty to not associate with that individual/corporation. I could boycott their services and spread the word about their discriminatory practice in the hopes that other people will boycott their services. And unlike the government, that individual is not able to use the coercive force of the state to retaliate against me.

Applying these principles to the Yaniv litigation

How do these principles play out in practice, particularly in the Yaniv litigation?

If we choose not to prioritize Yaniv’s human rights, Yaniv will face the prospect of being denied service on the basis of gender identity, which undoubtedly causes some inconvenience in attempting to find another service provider. Furthermore, it likely affects Yaniv’s sense of dignity and self-worth. This is not trivial, because liberal societies presume the equal worth and dignity of every individual, and less than equal treatment impairs that equality.

But at the same time, Yaniv retains the option of seeking out other service providers. There are undoubtedly many service providers in BC that will wax male genitalia.

If Yaniv finds another service provider, which is effectively choosing to boycott the women’s services, Yaniv can be reasonably certain that there will not be retaliatory action from those women.

Arguably, the consequences of not prioritizing women’s constitutional rights are much more serious. The violation of liberty, as described above, is severe.

By choosing to enforce Yaniv’s human rights, the strong arm of the state is reaching down into the personal lives of these women and forcing them to do a very intimate act against their own personal convictions. Such a scenario is the antithesis of a free society.

The enormous power of the state is closely tied to this. These women will be powerless to resist the order of the state. They will be liable to massive fines enforceable by court order, and potentially an order requiring them to provide the waxing service to Yaniv.

In short, when applying the principles to the Yaniv case, the damage done to the liberal ideals of freedom and individualism that underlie our society is greater when preferring human rights over constitutional rights. What should we do about this?

Direct the tribunal to give priority to constitutional rights

We should ensure that we are giving primary weight to constitutional rights when the two types of rights conflict. This could be accomplished by directing human rights tribunals, in each provincial human rights code, to give primary weight to constitutional rights when the two types of rights conflict.

This does not need to be a direction that constitutional rights will always trump human rights without any discretion. The constitution explicitly states that rights are subject to reasonable limits, and I leave open the possibility that a constitutional right should yield to a human right in circumstances that are clearly justified.

A good example might be a landlord claiming that providing an essential service, like tenancy, to a gay couple would violate his religious beliefs. In such a situation, the basic human need for shelter may justifiably outweigh the landlord’s right to express his religious beliefs.

However, the direction should be clear enough to remove discretion from the tribunal in cases where upholding the constitutional right would not have an objectively significant effect on the person being discriminated against. It should, for example protect free expression in a case where important political discourse is alleged to discriminate against a protected group. It should similarly be clear enough to protect a woman’s right to liberty and freedom of religion when she refuses to wax male genitalia.