Is Discrimination Justified?

Do feminist justifications for discrimination stack up?

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Smoke and Mirrors device from Guyot's "Nouvelles récréations physiques et mathématiques" (1770)

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Introduction

In Malta, elections aren’t the final word on who gets elected. Unsuccessful female candidates are routinely appointed to Parliament, overriding the will of the electorate. The justification is that women collectively are owed a certain number of seats - even at the expense of democratic principles. But does that defence really hold up under scrutiny?

In my first essay I argued that feminist initiatives are generally discriminatory. Such discrimination carries real costs in hostility, inefficiency and injustice. But, of course, feminists offer justifications to defend their initiatives. In this essay I will critique the three most common justifications, starting with the most frequent—Equality of Outcome.

Equality of Outcome

Let me tell you about my friend Joe…

Joe works for an Australian bank - ANZ. The company puts 11% of his income into a retirement account for him (called superannuation in Australia). That’s important to Joe because he doesn’t have a lot of savings. His boss on the other hand, is wealthy and owns multiple investment properties. Yet ANZ gives her extra superannuation - not based upon need but simply because she’s female.

This is justified by the claim that, on average, women retire with less superannuation than men so they should be given extra. This argument is an example of Equality of Outcome (though the terms Substantive Equality, Affirmative Action and Positive Discrimination are also used).

Consider another example, this time from a local Sydney university. If I apply to do engineering at University of Technology Sydney, I can be rejected in favour of a woman with a lower entrance score. Once admitted, she can access a broad range of support, mentoring and scholarships from which men are excluded. Again, the justification is Equality of Outcome - there are fewer female engineers, so the playing field must be tilted in their favour and against men.

But in both examples the statistics underpinning the justification have been selected very carefully. Women dominate at universities – 80% of teaching students and over 60% of all undergraduates – yet this imbalance is ignored. Similarly, ANZ’s superannuation policy ignores key context including the money available during retirement. (See analysis here.)

There are many other examples of Equality of Outcome:

• Men are commonly excluded from prized jobs either explicitly or covertly.

• Government grants and services are commonly reserved for women.

• Evidence that boys have superior mathematical ability rings alarm bells and must be fixed while girls’ dominance in other subjects is assumed to mean something is wrong with boys and hence ignored.

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Equality of Outcome isn’t new, and it has always been controversial. A century ago, Friedrich Hayek warned that, in the presence of different abilities and preferences, equal outcomes can only be achieved by discrimination and this infringes on the rights of individuals. Recently, Thomas Sowell has shown that Hayek’s concerns remain well founded.

Hayek also saw Equality of Outcome undermining rewards for talent and effort, thereby eroding the merit principle. Feminists including Iris Marion Young in Myth of Merit and Margaret Thornton in Affirmative Action, Merit and the Liberal State concede the conflict but conclude that the answer must be to jettison the merit principle. At Queensland University of Technology exactly this dialectic has played out, with the result that they ignore merit as a consideration in appointments.

The quiet part, not to be spoken aloud, is that this justification is only applied in one direction. Most undergraduates are women but there has never been an initiative to address that imbalance. Men are dealt with much more harshly by the criminal and family law systems but there has never been a men’s legal service. As a man, I am in feminism’s out-group and will inevitably be looked upon less favourably by policies that are divisive and discriminatory.

But the thing I find most offensive about these policies is that they are based upon the group into which one is born rather than the individual’s needs or circumstances. They only consider differences between men and women as groups – ignoring much greater differences between individuals. Consequently, privileged women are advantaged and underprivileged men ignored. Equality of Outcome programmes are thus frequently at odds with a compassionate consideration of the circumstances of underprivileged individuals.

But this is not the only justification used, even if it has been the most common. In recent times, feminists have increasingly turned to Women’s Rights to justify their programmes.

Women’s Rights

The UN-supported Women’s Right to Education Programme gives females access to education – clearly a good thing. What is not good is that they do nothing for boys. No case is made for why boys shouldn’t have the same right to education but their needs are simply ignored - trumped by Women’s Rights.

We also see the International Labour Organization doing something similar with the right to work. Other rights seem to just materialise out of nowhere. Reproductive rights, freedom from violence, and a right to health don’t derive from any established Human Rights. They have simply been asserted by feminists, while men and boys have no corresponding rights. Many assume that “Women’s Rights are Human Rights” but the reality is quite different. These rights are created on demand and reserved for women. It seems that if enough grievances are accumulated, they can be redeemed for exclusive benefits – rather like frequent flyer miles.

Many women-only rights originate directly from the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) while others were influenced by it. Indeed, CEDAW is often described as the international bill of Women’s Rights because it purportedly created a host of Women’s Rights. None of those rights are granted to men, in fact the opposite is true – CEDAW is generally understood to mandate (“positive”) discrimination against men.

Australia’s Sex Discrimination Commission follows the same path - focusing almost exclusively on women-only rights. Just as with CEDAW, the commission encourages sex discrimination against men - even publishing a handy guide on how to discriminate against men while staying within the law.

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None of this is new. Beginning in the 1980s, feminists including Carol Gilligan, Catharine MacKinnon and Iris Marion Young, dissatisfied with the rate of feminism’s advance, argued for new Women’s Rights that were neither universal nor impartial. Consequently, a key trend in modern feminism has been that feminist policies are increasingly justified by creating new “Women’s Rights” rather than by an Equality of Outcome justification. The feminist jargon for this is “engendering human rights” – meaning to create rights that are reserved for women.

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It should be clear that Women’s Rights are very different to the human rights of the past. While human rights apply to all, Woman’s Rights divide people into in-group and out-group and bestow privilege on the former. They erode the universality of human rights and are divisive and discriminatory.

Finally, Women’s Rights rest on an assumption that, should women want something, feminists can simply conjure up a right to it. But, just because you want something, that does not create an obligation on others to give it for you. To think otherwise is entitlement of cosmic proportions.

Retribution

The last common feminist justification has been on display in recent Australian news of a discrimination claim about the exclusion of men from part of an art gallery. The Australian Broadcasting Corporation defends the policy this way:

this is just going some way to redress the balance — because men have hogged all the space for decades

The argument is that, because women were excluded from some spaces in the past, men should be excluded from spaces in the present. Note that there is no benefit to women here, it simply exacts a penalty on men. Past discrimination is not undone, we simply feed a new cycle. By the same logic, shouldn’t women fight the wars for the next couple of millennia while men stay at home? Something about the ABC’s reasoning doesn’t add up.

This justification—punishing men today for past injustices—permeates feminist policies. For example, Australia’s Sex Discrimination Commissioner defends discrimination against men by pointing to presumed “historical disadvantage” suffered by women. And the UN’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) uses the same justification.

Furthermore, this justification has broad support among feminist academics. For example, Judith Lorber claims such policies are:

…necessary for balancing centuries of systemic inequality.

And Anne Phillips, writing on politics and democracy, also assumes discrimination can be justified by vindictiveness:

The proposed changes justify themselves by past bad behaviour…

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But this justification smuggles in many premises that, upon consideration, are deeply flawed.

A fundamental problem is that it assumes an equivalence between women today and ancestral women. Why? I have just as many female ancestors as women do. Shouldn’t I also receive privilege rather than be penalised? To particularise this point, if the ABC journalist’s grandfather “hogged space” to the cost of my grandmother, shouldn’t it be the journalist who is penalised?

At root, this is a doctrine of original sin – men are guilty by virtue of birth rather than any choices made as moral agents. Wreaking revenge on those who have done no harm, simply because they were born into your out-group, is far from just. It is, in fact, institutionalised vindictiveness.

Conclusion

Psychologists have long known that to admit oneself guilty of an immoral act creates a discomfort they call Cognitive Dissonance. The result is that, as we have all observed, people don’t meekly admit wrong - they reframe, rationalise, deflect, justify, minimise, disavow or undertake any number of other manoeuvres in order to feel comfortable with their act. Hence the three justifications I’ve analysed here.

The rhetorical sleight of hand they share is a leap from premises about women as a group to discrimination against individual males. Group identity is exalted over fairness, equality, and human rights. These three justifications have much in common, but it’s also interesting to review their differences.

As we saw, Equality of Outcome can justify either female advantage or male disadvantage but it relies on finding some statistic that suggests women are receiving a lesser outcome. Using Women’s Rights as justification has the advantage of not requiring any evidence, but it can only justify female privilege, not male disadvantage. Retribution, on the other hand, can only justify disadvantaging men, but it does share the attraction of not requiring evidence. The result is that Equality of Outcome, Women’s Rights and retribution complement each other and fit together neatly into an ecosystem of justifications.

If you want me to sum up my overarching thesis, it is this - all three justifications are merely rhetoric. Rhetoric can obscure a wrong, but it cannot transmute it into something morally right. If you want to understand feminist initiatives, focus on the reality of the act and ignore the inevitable rhetoric about equality.

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There’s more to be said about Gender Equality and similar feminist programs. In my next essay I’ll explore a critical but little recognised problem. Please make sure you are subscribed to be informed when it’s published.

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