Balancing competing human rights

Over the holidays, there was a family discussion/debate/argument — don’t you just love them — about LGBTQ rights, specifically gay marriage. An older member of our group resisted the notion of specific rights for the gay community and the younger ones were outraged. The kids repeated what they had learned about identity and performance theories and finally got to the more convincing argument of discrimination.
Unfortunately, the abrupt conclusion of some — family dynamics being what they are — was the non-conforming member was either homophobic or unnecessarily argumentative. For me, however, these labels were reductive and dismissive and limited a deeper conversation on the nature and content of human rights.

Gay marriage was legalized in the United Kingdom this month and will soon be legalized in France, despite strong protest by roughly one third of the population in both countries. In Russia, however, there is a popular proposal before the Duma to prohibit “homosexual propaganda” making public events and distribution of LGBTQ information to minors illegal and subject to serious fines. In the United States, the Boy Scouts of America is in the process of discussing its ban on gay scouts and leaders. At the same time, the U.S. military has repealed the “don’t ask, don’t tell” policy, and many U.S. states have moved towards legalizing gay marriage.

Political scientist Andrew Heard wrote:

With any inception of human rights, one is faced with having to acquire acceptance of their authority. There is a problem in that not everyone will share the same motivation or inspiration for human rights. Not everyone will agree that everything asserted as a human right is indeed one. At a very basic level, the proclamation and acceptance of human rights norms inherently involves majoritarian morality. Human rights are agreed to exist because a majority says they do. Specific goods and benefits are treated as human rights because a majority says they do. But, what of the minorities who object to the concept of universal human rights, or disagree with the particular entitlements to be included in lists of human rights? Why should they be bound by what others believe? What happens when a minority sincerely believe that some benefit being deliberately denied them by the majority is a matter that they view as a human right? In many specific human rights contexts, a problem of moral majoritarianism assumes central importance.

Human rights is not a static concept. Like all areas of life and law, there is debate and change, and one change will be the stepping off point for the next. Developments in the area of human rights do not take place in a vacuum. They take place in the arena of societies, made up of individuals and groups that are constantly concerned with their own survival, be it physical or social/tribal.

The content of the basket of human rights was not handed down by God, but has developed initially through the writings of philosophers and, more and more, through our domestic and international legal structures. In fact, much lobbying activity by non-governmental organizations of different positions takes place around the development of new legislation, or amendments to existing legislation. Each society grapples with this in its own decisions of which human rights, or extension of social benefits, it will advance.

Democratically elected governments carefully calculate what elements they can move forward with and still be re-elected. Don Murray’s article in the Globe and Mail laid out quite clearly British Prime Minister David Cameron’s evaluation. Political pundits follow the polls that political parties are looking at to talk about the wisdom of their various moves — all fairly predictable in the end, if you understand the psychology of the party faithful.

From a western legal perspective, we need to be mindful of the complexity of the conversation that is happening in other jurisdictions. It is always easy to judge people who we don’t agree with, but it is good to remember we may honestly have no idea of the local history and broader environment outside of our own jurisdictions.

Attempts to impose western liberal perspectives, through sanctions or through development aid, has had limited positive effect. Dictators are not particularly concerned with the welfare of their people. In other cases, poor people agree to modify their behaviour on paper in order to receive funding but in reality little changes on the ground. The international law framework itself has become increasingly criticized by scholars in the developing world.

At home, however, how should we deal with competing human rights?

In Quebec, Jean Charest’s government created the Consultation Commission on Accommodation Practices Related to Cultural Differences, commonly referred to as the Bouchard-Taylor Commission. It took an exhaustive approach to determining a series of recommendations to manage potential cultural conflicts. The commission received 900 briefs, more than 240 people made presentations, and more than 3,000 people attended hearings held around the province. A number of the recommendations were about moving Quebec to being a more overtly secular state, which provoked a deep discussion in Quebec about what secularism should look like.

In Ontario, the Ontario Human Rights Commission took a different approach, choosing to focus on methods to resolve “competing” human rights in organizations and public institutions. Like Quebec, the OHRC approach was inspired by the growing diversity in its population. Its report states:

The OHRC has found that public debates on competing rights often relate to the presence of minority communities and how far the dominant culture should accommodate the rights of these groups. For example, in the post 9/11 world, various cultural and religious practices of Muslims have been called “inappropriate” or “unacceptable” by elements of the majority culture. These scenarios have commonly been referred to as matters of “competing rights” in the media. Others have questioned the extent to which publicly-funded schools ought to incorporate recognition of and respect for sexual diversity, including diverse family forms such as same-sex families.

Rather than making recommendations, the report proposes a model of dispute resolution based on the organization being very clear on eight key principles case law has already established:

1.    No rights are absolute;
2.    There is no hierarchy of rights;
3.    Rights may not extend as far as claimed;
4.    The full context, facts, and constitutional values at stake must be considered;
5.    Must look at extent of interference (only actual burdens on rights trigger conflicts);
6.    The core of a right is more protected than its periphery;
7.    Aim to respect the importance of both sets of rights; and
8.    Statutory defences may restrict rights of one group and give rights to another.

The report sets out a process to recognize and reconcile competing human rights claims. The first is to determine if in fact the case is one of competing human rights, or other legal or legitimate interests. If yes, then an exploration of a mutually agreeable solution, or “next best” solution, is sought. Whatever decision is made must be consistent with human rights and other laws.

It is important to note that neither the reasonable accommodation approach, nor the competing human rights approach can work where the majority insists on its rightness and can impose its view through violence and intimidation. A certain set of social conditions, or ‘tipping point,’ must exist for there to be a critical mass of desire or willingness to change.

In Canada, an increasing immigrant population has forced all of us to develop some reflexes around diversity issues. I have no idea what, or how long, it will take for countries like Russia to become more accepting of the LGBTQ community. In the meantime, Canadians — through our government and NGOs — can voice our disagreement with the Russian legislation before UN human rights bodies, as well as with Olympic and Russian officials in the lead up to the Winter games in Sochi.

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