EQUAL RIGHTS, NOT GAY RIGHTS by Nigel Ashford
I am Senior Lecturer (Professor) of Political Science at Staffordshire
University in England. I am on the Academic Advisory Council of the
Libertarian Alliance (UK). It is based on my speech to a debate to the
Oxford University Civil Liberties Society against anti-discrimination
laws for gays.
This article (Political Note 109) is now maintained by the
Libertarian Alliance of the United Kingdom at this site.
EQUAL RIGHTS, NOT GAY RIGHTS
After the semi-successful campaign to reduce the age of consent for
homosexuals, gays are debating what should be the next campaign.
Many are advocating that the priority should be anti-discrimination
laws. Such a policy ignores the essential distinction between equal
rights with straights and special rights for gays. This article
advocates the former, and opposes the latter. The term 'Gay Rights'
blurs this significant distinction. To the extent that gay rights simply
means that gays should be afforded the same rights as straights, it should
be strongly supported, but when it implies rights that belong only to
gays but not to all straights, it should be vigorously opposed. 'Equal
Rights, not Special Rights' has unfortunately become a slogan of the
Christian Right. However they do not mean it, as is demonstrated by their
opposition to an equal age of consent. Gays , and all those committed to
equality under the law, must restate and recapture this principled
Equal rights would mean:
- an equal age of consent for gays and straights
- the right of gays to serve in the military
- the legal recognition of same sex unions, preferably marriage
- the right of adoption by gay families
- the right of inheritance for a gay partner if the other dies intestate,
without a will
A philosophy of equal rights would oppose:
-hate crime legislation, which creates an additional penalty if the
crime was an expression of hatred against gays
- legal prohibitions on anti-gay speech, unless it is threatening, in
which case it is covered by the existing laws that apply to all
-laws making discrimination against gays illegal for private persons in
employment, housing and so-called public places
The three principles that underpin this approach will be presented,
followed by the case against anti-discrimination laws. It should be
emphasised that state discrimination against gays should be ended
and gays should be entitled to the same rights in law as straights, the
principle of Civil Equality, while private discrimination should be
condemned but not outlawed.
1. 'Gay Rights' are neither Human Rights nor Civil Rights.
A Right is a moral entitlement. A Human Right means that it belongs
to all human beings, regardless of nationality, gender, race, religion,
or sexual orientation. Human Rights must meet three criteria: 1) they
must be universal, applying to every human being , wherever and whenever
they lived 2) they are absolute, except when they come into conflict with
each other 3) they are inalienable, and so cannot be surrendered, eg
no-one can sell themselves into slavery. These human rights were
expressed by John Locke as 'life, liberty and property', in the French
Declaration on the Rights of Man as 'liberty, property and security', and
in the American Declaration of Independence as 'life, liberty and the
pursuit of happiness'. Civil Rights, or Civil Liberties, seek to embody
these human rights into law, turning them into positive rights that can be
claimed. Every person has an equal right to be free from interference by
the state and others, in aspects such as freedom of speech, freedom of
contract and freedom of association.
If Gay Rights are rights that only belong to gay people by virtue of
being gay, ie they belong only to members of a particular group rather
than to all individual human beings, they cannot be human rights
because they do not meet the necessary criteria, notably the
universality principle. Thomas Sowell has discussed how the black
civil rights movement shifted from demanding equal rights to special
rights in his book Civil Rights.
2. It is not the role of the law to impose morality.
This has been one of the biggest debates in political philosophy,
between liberals and moral majoritarians. John Stuart Mill in On
Liberty articulated the principle that people should be allowed to do
as they pleased unless they do harm to others: the harm principle.
This principle has been used extensively to promote equal rights for
gays, eg in the Wolfenden Report. As the time Mill was strongly
opposed by James Fitzjames Stephens. A more recent debate was
between Lord Patrick Devlin, who thought that the law should express
condemnation of that deplored by the majority of people, against
Oxford philosopher H.L. A. Hart, who took a more liberal position. In
such debates, gays have sided with the liberal view that it is not the
role of the state to impose a particular conception of the good, even one
endorsed by the majority. The law exists to enable people to go about
their business, as long as they do not interfere with the rights of
others. Ronald Dworkin expressed this principle of liberal neutrality as:
No person is entitled to elevate his /her beliefs about how others should
act above those of anyone else. It is very important to emphasise that
for the state to allow an action is not to favour it.
3. Maximise the private.
The distinction between private and state (usually expressed as
'public') is extremely important in a free society. Unfortunately the
definition of the private has become narrowed to include only the
person's home, and sometimes not even that. The distinction
between private and public should be ownership, not who goes there.
'Public' should mean government owned, not open to the public, as in a
bar or club. Private property means that government has no right to
interfere with that property unless someone's rights are being
denied. A wide definition of private and a narrow definition of public
(state) is the best protection for gays. The alternative is that
government can legislate and interfere in areas open to the public eg at
the Stonewall Inn, or sexual activity in cinema clubs, or sado-masochistic
sex on private property (Operation Spanner). Those who control the power
of the state will use it for their own purposes and preferences.
Anti-discrimination laws would outlaw discrimination on grounds of
sexual orientation in employment, housing and 'public' areas.
This was proposed in the US federal Employment Non-Discrimination
Act (ENDA), and exists in many US states and local jurisdictions. The
Labour party conference in 1983 endorsed the idea, and many gay
activists want this proposal to be at the forefront of gay campaigns.
Such laws should be opposed on the grounds that they would
threaten civil liberties, society in general, and gays.
I. The Threat to Civil Liberties
Firstly, they attack freedom of association, the freedom to associate,
and not to associate, with whomever we choose for whatever reason,
good, bad or none. These reasons can be criticised but if some
motives are made illegal, then one is no longer free.
Anti-discrimination laws would force a Catholic to rent his property to
someone whose activities he views as abhorrent. A fundamentalist school
would have to hire homosexuals against their deepest beliefs (the cause
that brought Anita Bryant into anti-gay crusades) . A gay bar owner could
not employ only gay barmen and women. Gay clubs could not exclude
straights. Do not believe that these laws would only apply against
straights. In Provincetown, Massachussetts, a male gay bar was refused a
renewal of its alcohol licence because it excluded women and straight
men, as was a lesbian bar in New York for its policy. In San Francisco a
gay landlord was prosecuted for prefering gay men to women as tenants.
The principle of freedom of association does not defend anti-gay
discrimination, but recognises that bigots have rights too.
Secondly, they undermine freedom of expression. Anti-gay
discrimination will occur, but employers and workers will not be allowed
to express their true motives and will find other excuses to act.
Employers would become legally responsible for the speech of their own
employees, as in the case of the Irish worker compensated for the
anti-Irish jibes of his fellow workers. Of course employers should seek
to create an environment in which all workers feel able to carry out
their works in a relaxed and comfortable environment, but it should not be
the job of the employer to seek to regulate the speech of his or her
workers unless it affects the business.
Thirdly, they are an attack on private property rights. One should set
own one's rules on one's own property. In the famous US Supreme Court
case, Hardwick versus Bowers, Hardwick was found guilty of anti-sodomy
laws in his own home. Local anti-gays tried to prevent a lesbian retreat
in Mississippi. Freedom of association and respect for privacy can only
be protected by property rights, which allow individuals to carry out acts
between consenting adults free from invasion. The recognition of private
property rights is one of the great safeguards for gays, which they
threaten at their peril.
Fourthly, they deny the free exercise of religion. A church which
believes that homosexuality is a sin should not be forced to employ
someone who does not accept a basic principle of the church. Church
members and others of course could (and should) advocate that the
church should change its position on homosexuality. However the
church should be allowed to exercise its religious principles, as long
as it does not seek to translate them into law simply because they are its
principles. Laws would bring the state into the doctrinal affairs of the
different churches and cause intense resentment amongst them.
II. The Threat to Society
Firstly, it will damage the economy. Unemployment is the biggest
economic problem facing not only Britain but every western society.
Most economists agree that a major factor in unemployment is what
they call rigidities in the labour market. These are things which
discourage employers offering work and workers accepting it .
raises the cost of employment reduces the number of employment
opportunities. One example is the minimum wage which will
discourage employers from taking on inexperienced workers whose
job productivity is difficult to predict. Another discouragement is
employment legislation which makes it more difficult to sack a
worker. If it is difficult to remove workers, then employers will be
more cautious in taking on new workers. The fear of litigation if a
gay claims to have been sacked on grounds of sexuality will
discourage employers from offering employment.
This is not to advocate or defend discrimination. Discrimination has a
price in the labour market because the employer is not employing the best,
and will lose out to his competitors. This argument is developed in
detail by the Chicago economist Gary Becker in The Economics of
Secondly, it undermines the political system. Such laws will
contribute to what Arthur Schlesinger describes as the Balkanisation
of politics. Government becomes a battleground between special
interests seeking to use the power of the state to further their own
interests. In the process, the public interest is ignored. Every group
seeks to get its nose in the public trough, regardless of the cost to the
rest of society. Special interest legislation divides society by
emphasising differences in interests rather than common interests. This
argument is developed more fully by public choice writers such as the
Nobel Prize winner James Buchanan, and Mancur Olson in The Rise and
Decline of Nations.
Thirdly, they will make the UK a more litigitious society. There is now
considerable concern in the US with the massive costs in litigation,
which raises the cost of products,services and employment considerably.
See Walter Olson, The Litigation Explosion. There is now a strong
movement for tort reform to reduce the problem. Anti-discrimination laws
create yet another basis for additional litigation. Already considerable
sums have ben awarded in the UK to those who claim some sort of
discrimination, but little attention is given to who pays and the broader
costs to society. Fourthly, such laws will lead inevitably to quotas,
government mandated preferences for government favoured groups. Despite
claims to the contrary, and sometimes explicit references in legislation
banning quotas, they are an almost inevitable consequence of such
legislation . Why? These laws penalise motive, but motives are difficult
to establish. If the motive is illegal , discriminators will not admit
it. Those seeking to implement the laws move from a concern with
'disparate treatment ', ie with intent, to 'disparate impact' ie with
effects. The question then becomes how many blacks or women or gays are
To avoid costly litigation, compensation, and bad publicity, employers
impose quotas. Even without legislation, the Bar Council is
demanding 5% ethnic representation in barristers chambers. This
destroys equal treatment because prospective employees are not
treated equally on the grounds of merit but because of certain
characteristics. It is this which has created resentment and backlash
against affirmative action. It may not be the intent of the law to create
quotas but it is an unintended consequence.
III. The Threat to Gays
Firstly, they will perversely reduce employment and housing
prospects for gays. If you are an employer making an appointment,
you are aware that you may have to sack the worker in the future ,
because he or she is unsatisfactory, or because business requires it.
The employer may be reluctant to employ someone gay, or who appears to be
gay, because the employer faces the prospect that the employee would
claim that he or she was dismissed because of his/her sexuality . Better
to avoid the risk and not employ the person in the first place.
Similarly, one of the biggest fears of any one renting out property is how
difficult it may be to remove the tenants if they fail to pay the rent or
damage the property. Anti-discrimination laws adds another potential
obstacle to removing them. This creates an incentive to the owner to
favour renting to a straight rather than a gay, providing he/she can find
another reason to favour the straight. It would be yet another example
of the perverse effects of laws leading to the opposite to that which was
intended. Secondly, they will contribute to a backlash against gays.
In 1992 there were two referendums on gays in the states of Oregon and
Colorado. The former was defeated , while the latter passed. The
difference was that the Oregon proposition sought to condemn homosexuality
in the state constitution, while the Colorado one sought to ban local
authorities from passing anti-discrimination laws for gays. The moral
majoritarian slogan against special rights for gays resonated with
ordinary straights because there was an element of truth in it, whatever
the motivation of its promoters. Appeals to equal rights will appeal
much more to straights that appeals to special rights, and anti-gays will
be quick to blur the distinction.
Thirdly, they reduce the self-esteem of gays by creating a victim
mentality: that gays have no power but are dependent on the state to
protect them. There is now a debate between
victim and power feminism, between those who portray women as
victims who need the protection against men, and these who
emphasise the power and potential power of women. The power
approach would be best for gays. The psychology of the victim leads
to resentment not betterment. As Andrew Sullivan of the New
Republic noted, "By legislating homosexuals as victims, it sets up a
psychological dynamic that too often only perpetuates cycles of
inadequacy and self-doubt". Gays are then led to assume that they
cannot succeed without special protection, and straights will assume
gays are successful because of preference not merit. The difference
between power and victim approaches is reflected in the debate on
the existence of the Pink Pound. On the one side are those who
emphasise the existence of substantial economic resources in the
hands of gays, and view gays as success stories. On the other, the
victim gays seek to deny the power of the pink pound and prefer to
present gays as poor and down trodden.
Fourthly, anti-discrimination laws rely on the power of government,
yet government has been the chief oppressor of gays. Gays will
always be a permanent minority. It is very dangerous to rely on laws
passed by the majority to protect them. These laws would legitimise
interference in private matters. These are more likely to be used
against gays in the longer term . The state should be seen as a threat
to gays, not an ally.
Discrimination against people simply because of their sexual
orientation exists and is wrong, but it is not the role of the law to
correct every wrong. Law is not, and has not been , the solution to
sex and racial discrimination and will not be for sexual orientation.
There is no easy or permanent solution to anti-gay discrimination.
Gays can however seek :
- equality before law
- maximum freedom of association
- social disapproval of discrimination.
Gays must have equal rights to straights. They are entitled to
nothing less- but also nothing more.
Dr. Nigel Ashford is Principal Lecturer in Politics at the University of
Bruce Bawer, A Place at the Table: The Gay Individual in American
Society, Simon & Schuster, 1994.
Gary Becker, The Economics of Discrimination, University of Chicago
Richard Epstein, Forbidden Grounds: The Case Against Employment
Discrimination Laws, Harvard University Press, 1992.
Sean Gabb, What To Do About Aids, Libertarian Alliance Pamphlet
Brian Mickelthwait, Gay and Lesbian Rights: Property is Better than
Politics, Libertarian Alliance, Political Notes No. 69, 1992.
Mancur Olson, The Rise and Decline of Nations, Yale University Press,
Walter Olson, The Litigation Explosion, Plume, 1992.
Richard Posner, Sex and Reason, Harvard University Press, 1992,
Jonathan Rauch, Kindly Inquisitors, Chicago University Press, 1993,
Thomas Sowell, Civil Rights: Rhetoric or Reality, Morrow, 1984 .
Andrew Sullivan, 'The politics of homosexuality', New Republic
May 10 1993.
'Gay Rights or Human Rights?', Economist February 6 1993, pp.15-16.
(c) Copyright 1995 by Nigel Ashford and by the Libertarian Alliance of the United Kingdom.
First published by the Libertarian Alliance of the United Kingdom in 1995. Reprinted with premission.
Return to readers
Retrun to home page