By Roger Scruton.
It all seemed so harmless when first introduced. Wasn’t it obvious that goods and services in a market should be offered freely to everyone, regardless of race or sex? Wasn’t it obvious that there should be legal protection against discrimination in employment, given the history of racial and religious prejudice? Without stopping to question what was happening Western systems of law began to make room for ‘non-discrimination’ clauses, not only in contracts of employment, but in all matters in which opportunities were openly offered to members of the public.
That this restricted the freedoms of employers has seldom been regarded as an objection. We live in a society in which equality trumps freedom whenever the two conflict. Nevertheless, there is a distinction between relevant and irrelevant grounds for discrimination, and discrimination on relevant grounds has until now been permitted by the law. It is acceptable to discriminate in favour of large people when offering a job as a bouncer. But maybe it is not acceptable to discriminate in favour of people from your village back in Pakistan when offering a job at the cash till.
All might have gone smoothly, with an emerging consensus as to the distinction between the relevant and the irrelevant, had not the concept of non-discrimination been captured by a political agenda. Those agitating for equal treatment for women, for gays, for transsexuals and for other groups commonly regarded as marginalised have managed to write their causes into the very idea of non-discrimination. It is always irrelevant to discriminate against someone as a woman, or a homosexual, and this is made clear in the open-ended lists attached to non-discrimination clauses, and now enforced by the European Union under the Treaties and by the European Court of Human Rights. There is no longer an argument that could be heard in a court of law. Non-discrimination has become the latest step in a process whereby the rights of the individual are extinguished by the rights of the group.
The recent cases show that the concept of non-discrimination, designed to protect groups from oppression, can equally be used to oppress the rest of us. ‘Non-discrimination’ thereby becomes a new and insidious kind of discrimination – discrimination against those who, because they belong to no group that has been singled out for special protection, have only their rights as individuals on which to rely.