Positive discrimination: protecting difference
Discrimination is a tricky issue and, as recent publicity bears out, the McIvers Baths dispute is as tricky as it comes. Correspondents, columnists, photographers and editors have all had their say on whether women have a moral or legal entitlement to exclude men from the baths.
How well those views cope with the complex ideas in anti-discrimination law is another matter. The recent spate of letters to the Sydney Morning Herald has highlighted the emotive and overly simple way in which anti-discrimination measures are understood.
The complaint about restricted access to the baths is a long-standing one – it has just emerged from the slow process of conciliation at the Anti-Discrimination Board, and is ready to be heard ‘in open court’ at the Equal Opportunity Tribunal. It will be decided according to our anti-discrimination laws.
Those laws are concerned with ‘difference’, and with the extent to which the adverse consequences of difference (of sex, race, and ability) ought be redressed. Such an exercise reflects a philosophy of equality of opportunity: when people of different sexes, different races, and different abilities compete, they should be able to do so on the proverbial level playing field.
But “equality” does not necessarily mean treating everyone in the same way, at least not immediately. There is a gap that has to be closed, an imbalance that has to be addressed.
If an old set of balancing scales is uneven, with the two sides sitting at different levels, the only way to achieve balance is first to deal with one side disproportionately to the other. Only when they are level can both sides fairly receive equal treatment.
This disproportionate treatment – call it “affirmative action” – will occur in degrees that are dictated by circumstance, but in Western industrial societies it may take more than a few generations to “redress the balance”.
An alternative approach to discrimination comes into play when considering the need to recognise and respect difference, rather than to negate its consequences. Such a need arises when the differences are distinctive, characterising the place of a particular group in society. These defining differences are not necessarily biological. They may derive from cultural history, or from prevailing societal norms.
Thus societies may recognise the vulnerability of children or may accord special deference to the elderly, and affairs in such societies will be ordered to accommodate those groups according to their differences.
The conceptual distinction is between having regard to difference when it is an irrelevant consideration (which results in calls for equality), and having regard to difference when it is a defining characteristic (which results in respect for the preservation of difference).
This point of transition, the boundary between relevant and irrelevant difference, is a difficult concept to grasp at times, and is all the more difficult to put into practice. An appreciation of it is helpful, however, in understanding the recent recognition of the rights of those such as the young, the aged and the disabled who were previously thought to be entirely dependent because of their “difference”.
Women, whose battle for rights is often seen only as a battle for equality, are also entitled to have their fundamentally different place in society respected.
While women are subjected to unequal treatment, say in employment, which needs to be addressed through anti-discrimination laws, aspects of women’s difference need to be recognised and respected because they define women’s distinctive place in our society. One such “difference” is women’s need for safety, for physical privacy and for a sense of group identity.
Australia is predominantly a male culture, and a male-formed society. Women are abused, assaulted, and robbed in the street more than men are; they are employed, paid and represented less than men are. In public places and public life women, far more than men, are vulnerable. Preservation of private places for women, so few against the number of public and private places for men, so few against the number of public and private places in which men are safe and comfortable, is little enough recognition of women’s needs.
Many of the views on the McIvers Baths issue are understandably disbelieving that preservation of difference could be protected as “equality”. The mistake is to see “anti-discrimination” as necessarily equating only with pursuit of equality. The concept of “anti-discrimination” can extend to recognising and protecting difference.
If this was better understood, and accepted, there may be a more sophisticated debate about difficult public policy issues, and fewer unhelpful references to pigs, locker rooms and “men-only” public bars.
Published in the Sydney Morning Herald on 31 January 1995