RIGHTS AGAINST DISCRIMINATION ON THE BASIS OF GENDER AND SEXUAL EXPRESSION

 

Donnelly's Primary Claim:  Everyone has a right against invidious discrimination, at least when it is egregious or widespread. 

 

What is egregious discrimination?

 

What is invidious discrimination?  "Discrimination that tends to ill will or causes unjustifiable harm."(p. 548)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A problem for Donnelly's formulation:  When is discrimination justifiable?

 

U.N. Declaration of Human Rights, Article 2:  "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

 

Donnelly's proposed addition to the list:  "sexual minorities", includes gay, lesbian, bisexual, and transgendered. 

 

A potential problem in defining "sexual minorities": Rapists as sexual minorities?

 

 

 

 

 

 

 

 

 

 

 

 

 

Discrimination on the Basis of What? 

Behavior or Attitudes?

 

Nussbaum's Recap of the Military History:  Definition in terms of Acts or Conduct (Behavior) Replaced by Definition in Terms of Orientation (Attitude).

 

The Santorum Response:  Discrimination on the basis of attitudes alone is not justified.  Discrimination on the basis of attitudes + corresponding behavior is justified. 

 

Donnelly and Nussbaum want to protect both from discrimination:  Attitudes + Behavior.

 

 

 

 

 

 

 

 

 

 

 

 

 

Donnelly's Historical Argument:

 

Discrimination on the basis of gender expression is only the latest in a long history of the oppression of a stigmatized minority by the dominant social group:  e.g., attitudes of the U.S. majority toward Africans and Asians (he might also have mentioned Native Americans).

 

How would Santorum respond to Donnelly's historical argument?         The disanalogy between discrimination on the basis of race, sex, and national origin vs. discrimination on the basis of attitudes + behavior.

 

 

 

 

 

 

 

 

 

 

 

 

 

Talbott's Revision of Donnelly's Historical Argument:  Discrimination on the basis of gender expression is the latest in a long history of paternalistic justifications for a dominant group to oppress a stigmatized minority. 

 

Donnelly recommends a gradual "evolutive" strategy for developing a right against discrimination on the basis of gender expression.  Nussbaum can be understood as providing a framework for the evolution of such a right.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nussbaum's List of Gay, Lesbian, and Bisexual Rights

 

1.  The right to be protected against violence.

 

2.  The right to have consensual adult sexual relations without criminal penalty.  The move from Bowers v. Hardwick (1986) to Lawrence v. Texas (2003).

 

3.  The right to be free from discrimination in housing, employment, and education, with an exception for religious organizations only.

 

4.  The right to military service.

 

5.  The right to marriage and/or the legal and social benefits of marriage.

 

6.  The right to retain custody of children and/or to adopt.

Lofton v. Kearny (2004).  11th Circuit Court of Appeals upheld a Florida law barring homosexuals from adopting.

 

 

Potential Objections to a Right Against Discrimination on the Basis of Gender and Sexual Expression

 

(1) The Promiscuity Objection and the Superficiality Objection. 

 

(2) The Immorality Objection. 

 

(3) The Unnaturalness Objection. 

Response:  What about gene therapy, artificial sweeteners, and contraception?

 

(4) The Disgustingness Objection

       Response:  The analogy to miscegenation.  (Loving v. Virginia (1967))

 

 

 

 

 

 

 

 

 

 

 

 

The Main Problem With These Four Objections:

They are paternalistic.  The history of human rights is largely the history of the development of protections against paternalism. 

 

(5) Scalia's Slippery Slope Objection:

The same argument applies to bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.  ("Every single one of these laws is called into question by today’s decision."  Lawrence v. Texas, 123.S. Ct. 2472 (2003).)

 

       Which of these restrictions are paternalistic?  Is the paternalism justified?

 

 

 

 

 

 

 

 

 

 

 

 

       But paternalism is an appropriate basis for protecting children:  Is there a paternalistic justification for discrimination on the basis of gender expression—i.e., to protect children from harmful influences? 

 

(6) The Child Protection Objection.  This is a potential objection, for example, to granting adoption rights to those who are gay, lesbian, bisexual, or transgendered.  Is discrimination on the basis of sexual or gender expression in adoptions justifiable?