©
2000 Karen Selick
This speech was given
at the ISIL conference in London, Ontario on July 25, 2000.
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How “Human Rights” Laws Violate Individual Rights If ever there were a subject that could be called a “motherhood issue”, human rights would have to be it. Who except a radical misanthropist, or a deranged nut case, could possibly be against human rights? Unfortunately, libertarians who live in Canada find ourselves in the distressing position of having to place ourselves in the anti-human-rights camp. This is because, when it comes to the phrase “human rights”, Canada has a split personality. When Canadians talk about human rights in some foreign country, like China, Cuba, or Rwanda, we mean the right of individual human beings not to be murdered or imprisoned by their governments for offences such as belonging to the wrong tribe, or the wrong religion, or for speaking out in opposition to the party in power. However, when Canadians use the term “human rights” here at home, it means something entirely different. Here, it means certain privileges granted under what we call our “human rights codes.” Every province in Canada has one of these laws, although they sometimes go by slightly different names. Then in addition to all the provincial laws, there’s a federal law called the Canadian Human Rights Act. You can search in vain through these laws for any reference to the rights to life or liberty. You won’t find them. They aren’t there. What is there are provisions outlawing discrimination by certain categories of people against other categories of people. Landlords, for instance, are prohibited from discriminating against tenants on the basis of their race, sex, colour, age and so on, through a long list of various protected criteria. Employers are forbidden from discriminating against employees. Businesses are prevented from discriminating against customers. In other words, what Canada calls its human rights laws are really a collection of laws outlawing discrimination. I’ve been told that about half of the audience here today are Americans. You have the same kind of laws I’m talking about, but instead of calling them “human rights laws”, you tend to call them “Civil Rights Laws.” Your terminology is almost as garbled as ours. Surely if the phrase “civil rights” means anything, what it means is the rights that citizens have as against the state. However, your anti-discrimination laws, like ours, go much further than merely governing the relationship between the individual and the state. They actually govern the relationships between one individual and another. But whether they are called human rights laws or civil rights laws, the glaring mistake that jumps out at libertarians is that the word “rights” is included at all….because the word “right” is a very unique, and very special word. Anyone who does any writing on this subject has probably run across the problem of not wanting to bore his readers by using that word “right” over and over again. But just try to find a synonym for it. Look it up in a thesaurus some time. There are no synonyms. We reserve the word “right” to describe a rule of conduct which human beings have developed so that we can live together in society rather than as isolated individuals. (Now, at the risk of making your eyes glaze over during this dangerous after-lunch time slot, I’m going to take approximately 2 minutes and 24.793 seconds--as Spock might say-- for a brief discursion into abstract philosophy, and then I’ll get back to the more interesting stuff. So please, bear with me.) As Ayn Rand has pointed out, the concept of rights wouldn’t be necessary for Robinson Crusoe living alone on a desert island. It is not a concept that defines man’s interaction with inanimate objects or even with living creatures incapable of reason. If Crusoe found himself standing in the path of falling rocks or a charging wildcat, proclaiming his right to life wouldn’t help him. In fact, if it detained him for even a split second, it would probably hurt him. But the moment man Friday comes along, and there are two human beings who have to co-exist, the concept of rights becomes important. It is the moral interface between each individual and the society he forms part of, however large or small that may be. The concept of “rights” allows human beings to live the best life possible to us, given the kind of creature we are. Human beings are unique among living things because we possess the faculty of reason. It is reason that makes it possible for men to live a better life than brute beasts--by cultivating food, building houses, manufacturing clothing, by trading the products of our labour and so on. But to act on the basis of reason, one must be able to exercise one’s independent judgment; and to do that, one must be free from coercion by others. It is the concept of rights that allows human beings to live as neighbours to one another, and to reap the enormous benefits that human co-operation can offer, yet still maintain sufficient barriers to protect individuals from coercion by others so that they can exercise their reason. If this is the correct understanding of why we have rights, it follows that all individuals must be entitled to the same rights. We are all in the same boat. We all survive by exercising our faculty of reason. We all need to be free of coercion to do this. It also follows that rights belonging to individuals cannot conflict. If person A has the “right” to violate person B’s “rights”, then what B had must not have been a genuine right after all. The very concept of right contains the built-in characteristic of inviolability. If B did have a genuine right, then by definition, A is precluded from violating it. Therefore what A had could not have been a genuine right. This is the reason why I have taken to calling the anti-discrimination provisions of Canada’s human rights laws “phony rights” or “pseudo-rights.” Whenever they are exercised, they invariably violate another person’s genuine rights. Property Rights Example Okay, that’s the end of the abstract philosophy part. Now let me give you a few examples of what I’m talking about. I’m going to start with one that occurred right here in beautiful London, Ontario. It involves a disabled woman, confined to a wheelchair. In 1988, she decided that she wanted to retain the services of a chiropractor. She made an appointment with someone here in London. He worked at a clinic owned by a second chiropractor, who was also the owner of the building where the clinic was located. When she arrived for her appointment, she found that the building wasn’t wheelchair-accessible. There were steps leading up from the front entrance to the examining rooms. There was no ramp or elevator. She couldn’t get in. She went home. She spoke to the chiropractor on the phone. He suggested three alternatives. First, he said, she could come back to the clinic, and he and the other chiropractor who owned the building would carry her up the stairs. Or, if she preferred, he would come to her home and treat her there. The third alternative would be that he would arrange to borrow facilities from another chiropractor who had a wheelchair-accessible building, and he would treat her there. The disabled woman wasn’t happy with any of these suggestions. She complained to the Ontario Human Rights Commission, and they agreed with her. This was discrimination, they said. This was a violation of the disabled woman’s “rights.” This was illegal. Nothing less would do but that the building be made wheelchair accessible. The chiropractor who owned the building quite understandably resisted the notion that he should have to make alterations to his property for the sake of this one prospective patient. His building complied with all the existing zoning regulations and building codes for the city of London. This patient might well decide, after her first visit, that she didn’t like that chiropractor and would prefer to look for another one, or that she was cured of the problem that had sent her there in the first place and didn’t need any more treatments, or that she was moving away to another city, or any of a dozen other things that would have meant her first visit would also be her last. After years of negotiations with the Human Rights Commission (which accomplished nothing), a board of inquiry was convened. The hearing finally took place in 1995—almost 7 years after the original complaint. In the end, the board ordered the chiropractor to install a wheelchair ramp leading from the parking lot to the first floor of the building. This would mean the loss of one parking space on the premises, the loss of one examining room which would become too narrow to be used, and an outlay of approximately $20,000. Furthermore, it would violate an existing zoning by-law, and permission would have to be sought from the city of London to make the alteration. The board held that none of these factors constituted undue hardship, and that it was the chiropractor’s duty to accommodate the complainant. As well, the chiropractor was ordered to pay the disabled woman $500 in damages for infringement of her “rights.” What we have here, needless to say, is an example of one person’s so-called “human rights” trumping another person’s property rights. The effect of the decision is tantamount to the Human Rights Commission simply expropriating $20,000 worth of the chiropractor’s money, and damaging his building into the bargain. There is no evidence at all that the spending of this $20,000 and the disfiguring of the building will ever bring any benefit to anyone—not even the complainant. If she needed chiropractic treatment back in 1988, there’s a good chance she didn’t wait seven years for this decision to be rendered before going to another chiropractor. She has probably had her treatment long since, and she may never set foot—or should we say, never set wheel?--in this particular building for the rest of her life. In fact, if I had done to someone what that woman did to the chiropractor, I’d want to stay out of my victim’s sight for a good many years, and I certainly wouldn’t want to have him treat me. It may turn out that this clinic never gets another patient in a wheelchair. So this whole exercise may be all for naught. Freedom of Contract Example Okay, so human rights laws have driven a stake through the heart of property rights in Canada. What other rights do they violate? My next example shows how the freedom of contract is (pardon the expression) going to the dogs. In 1989, a woman named Sara Donner purchased a residential condominium unit in Waterloo, Ontario—about an hour’s drive away from here. The condo corporation’s by-laws stated that no pets were to be kept in the building. When Ms. Donner signed her purchase documents, she agreed to abide by those rules. For more than seven years, Ms. Donner lived elsewhere and rented her unit out to tenants. In 1996, however, she informed the condominium corporation that she intended to move into her unit with her 85-year-old mother and her mother’s small dog. Ms. Donner asked the corporation to amend the “no pets” clause. Her mother was totally deaf, and this dog had been trained to alert her to ringing telephones, intercoms, smoke detectors and so on. The corporation refused the amendment. Ms. Donner moved the dog in anyhow, and the corporation, supported by a majority of the unit-holders in the building, sought a court declaration that she was in breach of the condominium’s declaration and rules. The court held that enforcement of the contract among the 172 unit-holders would constitute discrimination against Ms. Donner’s mother on the ground of her disability. It would not assist in enforcing the terms that Ms. Donner had knowingly agreed to. It said: "[t]he Ontario Human Rights Code has been enacted by the legislature of the Province of Ontario for the benefit of the community at large and of its individual members. The parties are not entitled to contract out of its provisions. To allow the parties to do so would be contrary to public policy.” The court clearly understood that its decision would constitute a violation of the contractual rights of the other unit holders in the building. It attempted to minimize this violation by adding that its ruling was not to be construed as carte blanche for the dog to wander at will through the common areas of the building. It directed that the existing practice of taking the dog downstairs in a tote bag for its daily walk should continue. The court did not repeal the “no pets” clause; it merely refused to enforce the clause against an individual with a handicap. Presumably, an able-bodied occupant who tried to keep a dog in contravention of the rules would have met with a different fate. But where will the courts draw the line as to who gets to violate others’ contractual rights and who doesn’t? Would an autistic child who showed some interest in a pet be considered a worthy case for protection by the Human Rights Code? What about an individual who was chronically depressed and claimed that his pet was one of the few things that gave him pleasure in life? This decision raises other interesting questions. While the other unit holders in the building were not permitted to compel Ms. Donner’s mother to get rid of the dog or move out, would they be entitled to damages against Ms. Donner for breach of contract? After all, she is not the person with a disability entitled to the protection of the Human Rights Code, and she did knowingly breach the contract she had previously voluntarily agreed to. I wonder particularly about how section 3 of the Ontario Human Rights Code would affect this case, if anyone had bothered to look at it. Section 3 says: “Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, …handicap [and so on].” I have always wondered just what this section might mean, given that the other sections of the Code are all designed to override, rather than protect, freedom of contract. Would the non-handicapped unit holders be able to argue that they are entitled to as much protection as a handicapped person in the enforcement of their contracts, because if they didn’t get such protection, they would be suffering from discrimination on the basis of handicap? What would happen if there were other occupants of the building who suffered from different handicaps? Suppose an individual in a nearby unit had an extreme allergy to dogs and found that the building’s ventilation system was sending dog allergens into her living quarters. Or suppose another resident had a phobia of dogs, so severe that even the sight of a small dog in a tote bag would trigger a panic attack. Whose disability would trump whose? Freedom of Speech Example The third type of genuine right that we find being ousted by so-called human rights with increasing frequency these days is the right to freedom of speech. Examples abound. There have been at least 3 cases across Canada of human rights commissions forcing mayors or town councils to declare “gay pride days” at the request of gay activists. In several of these cases, the municipal officials objected on the grounds of their religious convictions. They believed that homosexuality is immoral, because they thought that’s what the bible says. As an atheist, I don’t have much sympathy for their position. However, as a libertarian, I would naturally respect their right to think and say whatever they want. Note, though, that these weren’t hate-mongers going around and actively spouting death threats towards gays. They weren’t campaigning for homosexuality to be outlawed. They weren’t even refusing permission for the Gay Pride parades to take place. All they were asking for was the right to remain silent—something that our constitution guarantees us in the case of a criminal charge, but not in the case of a so-called human rights complaint. One law professor from New Brunswick was even quoted in the Globe & Mail (one of Canada’s two national newspapers) as saying that the refusal to proclaim Gay Pride week could be considered “inciting or promoting hatred” against homosexuals. One of the more prominent cases of the “gay pride” proclamations occurred right here in London (this city seems to be a real hotbed of human rights problems). The former mayor, Dianne Haskett, and the London City Council, were fined $10,000 for refusing to make the proclamation. The Human Rights tribunal also ordered them to make a public statement to the effect that the city’s “gay, lesbian and bisexual communities” are “integral and important” to the city. So not only were they not permitted to remain silent, they were actually compelled to say something they didn’t agree with. Every time I think about this case, the image of Howdy Doody comes into my mind. The London City Council was supposed to sit there like a dummy on the knee of the Human Rights Commission and say these words, but everyone would know that it was the ventriloquist in the background who was really doing the talking. What on earth was this supposed to accomplish, other than a display of naked power by the Human Rights Commission? Here’s another example on freedom of speech. In 1996, the Toronto Star, the newspaper that has the largest circulation of any in Canada (and I might add, a very statist paper that is ordinarily a big fan of stuff like the so-called “human rights” laws) found itself the subject of a complaint to the Ontario Human Rights Commission. A woman of Polish descent claimed that the Star had violated Polish Canadians’ rights to “equal services without discrimination”. The Star had refused to publish a correction and 3 letters to the editor about an article on Poland that this woman disagreed with. To the best of my ability to determine, that case is still being pursued by the Human Rights Commission, although there has been very little publicity about it for the past few years. I actually e-mailed the Commission 3 weeks ago to see if I could find out what has happened to the case. The answer I got back was this (QUOTE): “I cannot confirm nor deny if any such complaint exists in the system. Please note that only the complainant and respondents may have access to a complaint that they are involved with.” (ENDQUOTE) I guess this policy of secrecy is supposed to comfort us that the human rights commission is preserving our privacy. Anyhow, if this complaint does exist within their system, and if it is not resolved by negotiation, and if the Commission then decides to take the matter to a board of inquiry, and the board holds that the Star is “guilty”, then the Code says that the board (QUOTE) “may direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices.” Among other things, this could mean that the board could order the Toronto Star to print the woman’s letters to the editor, to pay her compensation for hurt feelings, and perhaps to publish a further statement about how important the Polish community is to Toronto. It might even require Toronto Star editors to attend some sort of sensitivity training so they won’t make the same mistake again. There are still other examples of the violation of free speech rights. In British Columbia, newspaper columnist Doug Collins was hauled up before the B.C. Human Rights Commission twice. Some of you who were at the ISIL conference a few years ago in Whistler may recall that Mr. Collins was there as a speaker. Anyhow, the first complaint against him came from the Canadian Jewish Congress, regarding a column he wrote in which he referred to the movie “Schindler’s List” as “Swindler’s List”. That time, he was held not to have violated anyone’s rights because the column wasn’t strong enough to be considered as promoting hatred. But then, outraged by the ordeal he was being put through, Mr. Collins wrote 3 more columns about the Holocaust. This brought on another complaint, by a single individual, this time. In round 2, the tribunal decided that Mr. Collins and his newspaper had violated the man’s so-called human rights. It ordered them to pay $2,000 in compensation for injury to his dignity and self-respect. (Just as an aside, I’ve always wondered how a person can claim that something somebody else has done made him lose his self-respect. I mean, self-respect is what you give to yourself. If someone else says something nasty about you, why should that change your opinion of yourself? Are you supposed to believe the other guy, instead of sticking to your own opinion? If you do believe the other guy, aren’t you the one at fault? Shouldn’t you have to compensate yourself?) Anyhow, Canada’s three most western provinces, B.C., Alberta and Saskatchewan, have all gone out of their way to violate freedom of speech by actually writing sections into their human rights codes that explicitly prohibit certain forms of expression. The worst offender is Saskatchewan, because it actually had the gall to include a little mini-Bill of Rights at the start of its code, which it promptly proceeds to violate just a few sections later. Here’s an abridged version of Saskatchewan’s Code, section 5: “Every person … shall…enjoy the right to freedom of expression through all means of communication, including… the arts, speech, the press or radio, television or any other broadcasting device.” Then we go down to section 14, which says exactly the opposite: “No person shall publish or display… in a newspaper, through a television or radio broadcasting station or any other broadcasting device or in any printed matter or publication…any...statement...: (b) which exposes… to hatred, ridicules, belittles or otherwise affronts the dignity of any person… or a group of persons; because of his or their race, creed, religion, colour, sex, sexual orientation, family status…[and so on].” Then, to top it all off, the very next section flip-flops again. It says: “Nothing in [the preceding] subsection… restricts the right to freedom of speech under the law upon any subject.” Figure that one out. The freedom of speech issue is a particularly interesting one for us here in Canada, because unlike the first two rights I mentioned (property rights and freedom of contract, neither of which is protected in the Canadian constitution), freedom of expression actually is guaranteed in our constitution. Doug Collins is currently trying to have the B.C. Human Rights Code held unconstitutional in the courts. However, there’s a long, slow process ahead of him, and I, for one, am not confident that the outcome in the courts will be a good one at the end of the day. You Americans in the audience are fortunate that your First Amendment rights are stated in very strong language: “Congress shall make no law abridging the freedom of speech or of the press.” But here in Canada, our constitution contains a weasle clause for every single right that it supposedly guarantees us (and I’m talking real rights here, such as freedom of speech). The very first clause of our Charter of Rights and Freedoms says that all of our rights are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, whenever the legislature decides to pass laws violating our genuine rights, the Supreme Court gets to say whether those violations are “justified”. Now, isn’t that one exciting rights guarantee? Economic Dictators to the Country The free speech violation is bad enough, but just last month we Canadians learned that there is something even worse in store for us. A panel of so-called experts has recommended that our federal Human Rights Act be amended, and in addition to violating property rights, freedom of contract and freedom of speech, it would then violate just about every other economic freedom you can imagine. The Human Rights Commission is about to become the economic dictators to the country. How can this happen? Well, the experts have decided that outlawing discrimination on the basis of race, sex, colour and so on is not enough. Now they want to outlaw discrimination on the basis of something they call “social condition.” What on earth is social condition, you may ask? Does it mean having halitosis or body odour? Does it mean being an obnoxious bore or a hopelessly shy geek? Actually, none of the above. “Social condition” is being used pretty much as a synonym for “poverty”. Why bother with a synonym, you ask? Why not just say poverty? Well, the committee that recommended these changes answered that one. They said: “The term “poverty” should be avoided because there is no consensus about its meaning or measurement. “ Oh, yeah—right—as if there’s consensus about the meaning of the term “social condition” or its measurement. In any event, just think for a minute about what it will mean for businesses to be forbidden from discriminating on the basis of poverty. One of the big beefs that so-called human rights activists have is that poor people—and especially welfare recipients--sometimes get turned down by banks for loans and mortgages. (Surprise, surprise.) Now banks won’t be able to do that any more. They won’t be able to use standard income tests or debt servicing ratios to determine whether or not an applicant qualifies for a loan. They’ll have to judge each case on an individual basis, without the use of guidelines, by doing individualized reference checks and credit histories and deciding whether or not to believe this person when he says he’ll make the mortgage payments his top priority instead of spending his welfare cheque on other stuff. Needless to say, this is going to increase the cost of loans for every other customer. Just processing loan applications under these restrictions will cost a lot more than it used to. But the number of bad debts is also likely to increase, and that is likely to raise costs for all borrowers. But that’s only the start, because (the panel of experts tells us) social condition doesn’t just mean poverty. It also encompasses certain other related conditions, such as illiteracy or homelessness. So suppose a homeless person decides he’d like a $50,000 loan, too, even though he has no house against which the bank can register a mortgage. If the bank refuses, wouldn’t that constitute discrimination on the basis of homelessness? In fact, my prediction is that this new prohibited ground of discrimination will be the jumping-off point for an all-out attack on the market system. The very act of fixing a price for your goods or services could be construed as an act of discrimination against the poor, because they will obviously be less able to afford your product than the rich. Now, everyone in this room knows that merchants don’t use prices as weapons of discrimination against the poor. In fact, we greedy capitalist pigs aren’t known for turning away business merely because a potential customer is poor. Usually the criticism is that capitalists exploit the poor, which means that we at least do business with them. But if we look at what radical egalitarians call “adverse impact” theory that has developed in recent years, I think my prediction falls squarely within the realm of possibility. So pretty soon, I expect that human rights laws will violate not only the rights to property, to contract, and to free speech, but also the right to determine the selling price of your products. The human rights commission will become the economic dictators of the country, just as much as the government ever was in the former Soviet Union. What’s It Really About? The question that always comes to mind whenever I ponder laws like these is this: Are the people who drafted them really so stupid? Or are they simply evil? I still haven’t reached a decision on that one. But one point I always try to make clear is that these laws really don’t have anything to do with preventing discrimination on the basis of race or colour or other irrelevant personal characteristics. How can I tell? Because they’re lopsided. They apply in only one direction. Landlords can’t discriminate against tenants, but tenants are perfectly free to walk away from a vacant apartment if the landlord happens to be black, or Jewish, or elderly or handicapped. Employers can’t discriminate against employees, but employees can legally discriminate against employers. Storekeepers can’t discriminate against customers, but customers can pick and choose, on the basis of race, religion, sexual orientation or any other arbitrary criteria, the stores that they wish to patronize. Now let me be absolutely clear that correcting this lopsidedness by outlawing discrimination in both directions would only make things worse, not better. That is certainly not what I am advocating. But my point is that there is some method in this apparent madness. If you look at the people who are prohibited from discriminating, they all have one thing in common: they’re the sort of people who are presumed by socialists to be wealthier than the people they are being forced by law to deal with. Landlords own the rental premises; tenants don’t. Employers own the business; employees don’t. Storekeepers own everything in the store; customers don’t. Of course, this presumption of unequal bargaining power is probably wrong a good percentage of the time. Landlords, employers and storekeepers aren’t always rich. Their assets might be mortgaged to the rafters. A good many of them are struggling to get by. Tenants, employees and customers aren’t always poor. Nevertheless, the intention of the so-called human rights laws is clear. The people who are denied the right to determine how their property will be used, the people who are denied freedom of contract, are the people who appear to have assets. They appear to have wealth, in one form or another—buildings or businesses. And the so-called human rights laws are designed to deny them the benefit of using their wealth in the manner they choose. These laws are designed instead to place their wealth at the disposal of people who don’t own it. In other words, the goal of these laws is to impose a form of thinly disguised socialism—to redistribute the benefits of property ownership without going through the hoops of actually redistributing the property. Taking people’s property away from them tends to make them very angry. But telling them you are merely enforcing human rights…that’s another story. You can probably make them feel guilty enough to get away with that. You may have noticed that throughout this speech, I have made a point of always referring to the human rights laws as “so-called human rights laws.” I think it’s important for libertarians to defend freedom not as the Canadian Civil Liberties Association does, by wimping out and saying these laws are right in principle, but are just being carried too far. Libertarians must denounce these laws as wrong in principle, wrong from the very start, and destructive of true human rights. Thanks. I’m available for questions. - END - |
June 26, 2011