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Inflating Away Our Human Rights

Mises Daily: Monday, December 14, 2009 by

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"The alleged right to freedom from discrimination is, on close examination, merely a means to allow the use of force to prevent people from using all available information in their judgments of others."

One of the most effective ways to destroy a concept is through the process of conceptual inflation: First, expand the ambit of the concept to include contradictory elements. Then resolve the contradictions you have created through insistence that none of the elements is absolute and each element must be weighed off against the others. Finally, systematically and incrementally work to favor the bogus elements of the concept until the original meaning is totally lost.

This is what has been happening to the concept of "human rights" under the regime of antidiscrimination laws. By asserting a right to be free from discrimination, various government commissions and associated lobby groups have — for a long while — gradually undermined private property rights, which underlie our freedom to trade and our freedom of association. By doing so, these groups now claim extensive power to ride roughshod over private decisions.

Their abuses of the term "human rights" are well known, and so usually this process is done without people taking much notice. But every now and then it breaks into the public eye when the arbiters of our "rights" stretch the concept beyond all recognition.

This process of the conceptual inflation of human rights was demonstrated in a recent antidiscrimination case. A tour guide from Melbourne, Australia, attempted to create a small travel business operating women-only tours. Ms. Erin Maitland created the business to cater to the niche market of women looking for a "girls-only" holiday involving activities such as cooking, shopping, personal care, and crafts. She reportedly obtained the idea from her discussions with female friends after hearing of their aversion to mixed-sex holiday tours filled with sexual conquests and partying.[1]

As a legal requirement to operate her business venture, Ms. Maitland applied to the Victorian Civil and Administrative Tribunal for an exemption to antidiscrimination laws that prevent the offering or advertising of such a service.[2] Her case was an important one for the hawks of the antidiscrimination profession, in that it tested the legal effect of the Victorian Government's recently adopted Charter of Human Rights and Responsibilities and provided an important precedent for the application of antidiscrimination laws in that state.

No doubt eager to strengthen their legal turf and establish a strong precedent in support of their powers, the Victorian Equal Opportunity and Human Rights Commission appeared at the hearing to argue — with a straight face — that Ms. Maitland's humble tour business would violate the human rights of men. In what became a comical demonstration of the process of conceptual inflation, the commission pulled out all the stops to ensure that oppressed men everywhere could breathe a sigh of relief at the protection provided by their benevolent overlords.

As part of their case, the commission contended that Ms. Maitland should be required to convince the tribunal of a "demonstrable need" for female-only services, based on safety, security, or other compelling considerations. However, they were also adamant that the desire of actual female customers to use the service would not suffice — that accommodating a "mere preference" by a section of the female community would be insufficient reason for an exemption.[3] The commissioner, Dr. Helen Szoke, explained her opposition to the business proposal:

What needs to be understood is that exceptions and exemptions under [the applicable antidiscrimination laws] exist to try to promote equality. So where it's felt that groups who are disadvantaged or marginalised, that need a special measure to help them achieve equality, that's when the equality should take place. This whole issue is not about targeting this particular application. It's really saying: "let's not misuse the exemptions just to build a business or develop a market share, or a niche market."[4]

In attempting to meet the requirement to demonstrate a "need" for her services, Ms. Maitland put forward several potential reasons why women might be attracted to a female-only holiday service. She contended that a no-men-allowed policy would put the women on her tours at ease, and provide a holidaying opportunity for women who, for religious or cultural reasons, would not feel comfortable traveling in the company of men. To the chagrin of some feminists,[5] she also argued that the no-males policy would provide reassurance to any male partners of the female travelers, and make them more supportive of the women's holiday plans.

While these are all plausible ideas, Ms. Maitland could be right or she could be wrong. In a free society, she would be free to pursue her proposed business and test her entrepreneurial talents. Her ideas would be tested on the market, and she would bear the risk that she had misjudged the wants of her potential customers. If she misjudged the situation, then her female-only policy would drive away potential customers, putting her at a competitive disadvantage.

Rather than being at the mercy of a government tribunal, she would be at the mercy of the decisions of thousands of potential customers, who, as Ludwig von Mises has stressed, are the real bosses in a free-market economy, and the ones who ultimately determine what goods and services are produced.[6] Any men who took offence to her female-only policy would be free to seek travel services elsewhere,[7] start up their own travel companies in competition, or even condemn her policy and peacefully lobby for it to be changed.

Unfortunately, rather than having her judgment tested on the market by the many potential customers who actually stand to benefit from her services, antidiscrimination laws and associated "human rights" legislation required Ms. Maitland to justify her proposal to only one woman, Judge Marilyn Harbison, the government functionary who heard her application.

In what became fodder for the ridicule of media commentators,[8] Judge Harbison accepted the commission's claim that Ms. Maitland's policy would violate the human rights of men. She ruled that the policy would breach the right to "equal recognition before the law" under the Charter of Human Rights and Responsibilities, a provision that entitles people to "equal and effective protection against discrimination."[9] In explaining her reasoning, the judge soberly explained that Ms. Maitland's humble, female-only tours could not be "demonstrably justified in a free and democratic society based on human dignity, equality, and freedom."[10]

"Similar tribunals in other Australian states and around the world hear thousands more of these cases every year, and their judgments routinely violate rights of free trade and free association."

Of course, the alleged "right" accruing to men in this case consists of the entitlement to have Ms. Maitland offer them a service that she does not wish to offer them. It is the right to force her to organize holiday tours that include men, whether she wants to or not. This compulsory imposition is what is done in the name of "freedom" and "human dignity" by government agencies that refer to themselves in lofty terms as "human rights" organizations.

These bogus "human rights" are not just the products of a misunderstanding of the nature of rights; they are actually a means for subverting genuine rights. The alleged right to freedom from discrimination is, on close examination, merely a means to allow the use of force to prevent people from using all available information in their judgments of others.

It is a "right" that compels them to act against their own wishes, and in many cases, compels them to act irrationally. In fact, its purpose is to undermine the very concept of "human rights" through conceptual inflation, with the ultimate goal of annihilating freedom of association and imposing egalitarian outcomes on all human social processes. As Ayn Rand has explained,

A collectivist tyranny dare not enslave a country by an outright confiscation of its values.… It has to be done by a process of internal corruption. Just as in the material realm the plundering of a country's wealth is accomplished by inflating the currency — so today one may witness the process of inflation being applied to the realm of rights. The process entails such a growth of newly promulgated "rights" that people do not notice the fact that the meaning of the concept is being reversed. Just as bad money drives out good money, so these "printing-press rights" negate authentic rights.[11]

To see exactly how this conceptual inflation undermines the concept of rights, observe that the alleged human rights of men in this case have been used to drive out Ms. Maitland's actual rights. She has not been entitled to use her property as she sees fit, or to trade and associate freely with others in her business activities. Instead she is forced to cater to anyone that her political masters deem worthy of her services, whether it is her desire to serve them or not.

Such an assertion of human rights is obviously ridiculous. But it is a predictable consequence of the conceptual inflation that comes with the widespread acceptance of the antidiscrimination paradigm. Once people accept that they are entitled by right to freedom from discrimination, there is no end to the level of interference with genuine rights that they must tolerate.

The sole point about this case that makes it remarkable is that it obtained coverage from the media and was put into the public eye. But for each case that is reported by the press, there are many more that go unnoticed in antidiscrimination tribunals all over the world.

In this year alone, the Victorian Tribunal has heard 26 cases that were either antidiscrimination lawsuits or applications for exemptions from antidiscrimination laws. In each case, the defendants and exemption applicants were forced to go to the expense and stress of court proceedings merely to defend their property rights — often unsuccessfully. Similar tribunals in other Australian states and around the world hear thousands more of these cases every year, and their judgments routinely violate rights of free trade and free association.

It is highly doubtful that men will feel much "dignity" at having been used by government agencies as a pretext to micromanage the business decisions of a budding female entrepreneur.

In generations gone by, the "human dignity" of a man was expressed, in part, through his own chivalry toward females — through such friendly gestures as holding the door open for a woman, or offering her his coat on a cold day. Now, under the influence of the antidiscrimination paradigm and "human rights" law, men are being told that their human dignity requires the enslavement of a woman who does not wish to provide them with a holiday tour. How very dignified!

Notes

[1] "Plan to Ban Bed-Hopping Blokes Backfires." (Yahoo7, Travel News, November 18, 2009)

[2] See Travel Sisters (Anti-Discrimination Exemption)(2009) VCAT 2427.

[3] Travel Sisters (2009) VCAT 2427, per Harbison at paras 15, 21–22. The words "mere preference" are the judge's paraphrasing of the commission's argument in para 21; the actual words used by the commission are not given in the judgment.

[4] "Plan to Ban Bed-Hopping Blokes Backfires."

[5] Menkedick, S. (2009) "Women-Only Travel Company Violates Men's Rights." Women's Rights, November 19, 2009.

[6] See von Mises, L. (2007) Bureaucracy. Liberty Fund: Indianapolis, p. 17.

[7] It is worth noting that the judge in the case recognized that the "proposal would have had minimal impact on the choice available in a very large and competitive industry." Travel Sisters (2009) VCAT 2427, per Harbison at para 37. Even if this were not the case, there is no inherent right for men to have travel services available to them.

[8] In commenting on the case, writer Clem Bastlow had this zinger:

What do blood diamonds, human trafficking, and women-only holiday tours have in common? As of today, they all represent an affront to human rights. And, most worryingly of all, the latter is happening right here in Melbourne.… After all, here in Victoria we are lucky to enjoy basic human rights such as freedom, justice, peace and respect, and package tours.

See Bastow, C. (2009) "Poor, Downtrodden Blokes Need a Holiday with the Girls." WA Today, November 18, 2009.

[9] See section 8(3) of the Charter of Human Rights and Responsibilities Act, 2006 (Vic). Of course, since the charter does indeed specify a "right to equal and effective protection against discrimination," some may contend that Judge Harbison was merely applying the relevant legislation, and therefore should not be subject to criticism for her decision. But this is clearly not all that the judge did. Rather than merely stating the legal effect of section 8(3) of the charter, Judge Harbison herself ruled that Ms. Maitland's business proposal could not be justified in a "free and democratic" society and "cannot presently be justified on human rights principles." Both of these statements go well beyond mere exposition of legislation, and enter clearly into the realm of political philosophy. In making these statements, Judge Harbison went beyond merely applying a piece of legislation, and became an advocate for an incorrect and tyrannical view of "human rights."

[10] Travel Sisters (2009) VCAT 2427, per Harbison at paras 33–34.

[11] Rand, A. (1967) Capitalism: The Unknown Ideal. Signet: New York, pp. 323–324.