The Canadian Charter of Rights and Freedoms prohibits discrimination based on the following characteristics:
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Canadian Human Rights Act (HRA) goes a bit further, specifying a longer list of prohibited grounds for discrimination:
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
It goes on to specify what constitutes a “discriminatory practice” (e.g. refusing employment, refusing residence to, etc.) followed by a list of exceptions, of cases in which there may be bona fide grounds for treating people differently based on these characteristics.
One thing to notice about these lists of “prohibited grounds for discrimination” is that they are rather heterogeneous. For instance, the standard reason for prohibiting discrimination based on race is that we consider people of all races to be essentially equal, and so it is difficult to imagine any circumstances in which race could be a bona fide employment qualification (other than catering to the racist preferences of other people, which is ruled out). Disability, on the other hand, is quite different. A person who survives a car accident as a quadriplegic is someone who has suffered a personal tragedy. It is not difficult to imagine cases in which being in a wheelchair could be legitimately disqualifying for many types of employment (e.g. being a firefighter). Thus the purpose of the HRA is not to prohibit the latter forms of discrimination, it is to ensure that the person’s disability status is not treated as disqualifying in cases where it does not actually impair job performance (e.g. working in a call centre).
There is, of course, an influential strain of thinking in the disability-rights movement that wants to resist this line of thinking, arguing that “disability” is a social construct – being in a wheelchair is only unfortunate when you live in a society organized by and for people who are not in wheelchairs – and thus not intrinsically bad. Hence the familiar claim that “I’m not disabled, I’m just differently abled.” This has always struck me as a dubious argument, but in any case, there has been enormous pressure in recent years to expand the disability category to include various diseases, such as diabetes, which tends to undermine the whole “differently abled” line. Having a fatal disease seems like an obviously bad thing, which most people would like to see cured. Saying “we’re all dying, some of us are just dying faster,” doesn’t seem like it puts things on an equal footing.
What is the best way to articulate this distinction? For me, the most natural way is to distinguish between law and ethics, and to say that, from an ethical standpoint (or to be more precise, from an evaluative standpoint), being confined to a wheelchair, or being blind, or having diabetes, is a bad thing (so that, for instance, if you had the power to prevent it, or to cure it, you should do so). On the other hand, being black, or female, or francophone, is not a bad thing, it is evaluatively neutral. All the HRA specifies is that, regardless of whether one views the status as good or bad, one is legally prohibited from using it as a basis for discrimination in employment, housing, etc. in cases where it is not directly relevant. Also – and this is an important subtlety – the status cannot be made relevant by the negative evaluative judgment, of oneself or others, there must be some other, direct basis.
Thus it is perfectly coherent for one to fervently desire that one’s child not be born blind, or autistic, or be paralyzed in a car accident, and yet be committed to not discriminating against those who do happen to be blind, autistic, or quadriplegic. Similarly, it is perfectly coherent for a medical researcher to believe that blindness is a terrible thing, and to dedicate her life to finding a cure (or if you don’t like blindness as an example, substitute paralysis, or diabetes). It is also not discriminatory for parents to have their child equipped with a Cochlear Implant in order to prevent or cure deafness. In other words, one can be committed to the legal equality of abled and disabled persons, while nevertheless believing that, from an evaluative perspective, it is better to be abled than disabled.
Some people, however, seem to be misinterpreting the Charter/HRA, believing that it prohibits not just legal discrimination, but also the evaluative judgment, or the expression of that evaluative judgment. But it is not ableist to think that it is a tragedy when a child is born blind, or is paralyzed in an accident. And the Charter/HRC obviously does not prohibit the expression of the latter view. This gets confusing, however, because in the case of racism, we tend to use the same term (namely, “racism”) to describe both the legal discrimination and the negative evaluative judgment. Furthermore, because there is so little to be said for the evaluative judgment (i.e. that one race is better than another), we tend to think that anyone expressing this judgment must be up to no good. Thus we are tempted to treat the expression of racist views as an attempt to encourage discrimination, and thus exhibit very little tolerance for it (classifying it as “hate speech,” etc.)
I’ve been using race and disability as my two examples because they are at the extremes. There are, however, some intermediate cases, in which the evaluative status of a particular trait is more actively disputed. Perhaps the most prominent example of this is sexual orientation. Many people are inclined to think that homosexuality is, like race, evaluatively neutral – that it is in no sense better to be heterosexual than it is to be homosexual. There is, however, an extremely long-standing tradition within the Christian religion of treating homosexuality as sinful. The issue, I should note, is not just that the Bible contains passages that fairly unequivocally condemn (male) homosexuality. As people never tire of pointing out, the Bible contains all sorts of prohibitions that Christians ignore all the time. The difference, in the case of homosexuality, is that these Biblical prohibitions got taken up and integrated into the Christian tradition, were given a theological justification, and were reiterated over the centuries by several important Christian thinkers, including St. Thomas Aquinas. For people who take seriously the idea that morality is God’s law, handed down through revelation and interpreted by the church, it’s very difficult to say “oops, I guess the Bible and church have just been wrong about this for the past 2000 years and a bunch of secular intellectuals have it right.”
Racism was a hastily cooked-up pseudo-scientific theory, popularized in the 19th century primarily as a way of justifying the obvious violation of both Christian morality and Enlightenment principles involved in the slave trade. The prohibition of homosexuality, by contrast, was based on much more serious arguments. Indeed, it followed rather closely from an Aristotelian perspective on matters of sexuality. Every practice and human quality was thought to be oriented toward some good, which is determined by the purpose that it serves. If one looks at sexuality, and asks what purpose it serves, the answer that springs most readily to mind is “reproduction.” Christians, under the influence of Aristotle, decided that all non-procreative forms of sexuality were “vices” – a category that obviously included homosexuality. As Aquinas put it, “every emission of semen, in such a way that generation cannot follow, is contrary to the good for man. And if this be done deliberately, it must be a sin” (Summa contra Gentiles, Bk. III, Ch. 122).
This Aristotelian worldview was thrown into disarray by the scientific revolution and Enlightenment political philosophy, as a result of which a majority of Westerners no longer use this framework for thinking about moral or evaluative questions (and as a result, have no trouble accepting the idea that sexual orientation is morally neutral). Nevertheless, a substantial minority of Christians cling to the (basically medieval) Christian-Aristotelian perspective, according to which homosexuality is sinful. As a result, they are genuinely perplexed by the suggestion that homosexuality is not sinful, because on their view, it deprives them of the intellectual resources required to explain what is wrong with other non-procreative sexual acts, such as pedophilia and bestiality (which is why they keep bringing these things up, in what seem like inappropriate contexts).
The term “homophobia” is somewhat inadequate to describe this view, because it is not an irrational fear (as the term “phobia” suggests), but rather a reasoned position. One doesn’t have to agree with a view to recognize that people may have cogent reasons for holding it. Furthermore, to the extent that the dispute involves assessing a complex range of moral and evaluative considerations, it is a good example of the sort of issue that reasonable people of good will can nevertheless disagree over. The Christian-Aristotelian worldview has some serious problems with it, but then so does the scientific worldview (keeping in mind that we Enlightenment rationalists have yet to produce any generally accepted account of the foundations of ethics). In this respect, attitudes toward homosexuality are quite unlike the case of racism. Thus it would be quite wrong to think that a belief in “human rights” prohibits individuals from holding a negative evaluation of homosexuality, or should prohibit the expression of such views. And one certainly cannot appeal to the Charter/HRA to rule it out.
Consider the issue from the standpoint of academic freedom as well. If I were to assign The Protocols of the Elders of Zion in class, defending my actions on the ground that students “deserve to hear both sides of the issue” on the anti-Semitism question, I think that my choice could rightly be criticized, and legitimate questions might be raised about my competence as an instructor. On the other hand, if I were to assign passages from Aquinas’s Summa Contra Gentiles to a class, on the grounds that it was important for students to understand why homosexuality was for centuries regarded as sinful, or why the Catholic church holds the position that it does, that would just be me doing my job. Of course, when I teach Aquinas – mainly I just teach his arguments for the existence of God – I usually explain to students what I think is wrong with those arguments. I have colleagues, however, who think those arguments have substantial merit, and so teach students what they think is right about them. Suppose they were to teach Aquinas’s views on sexuality, and defended those arguments in class. However uncomfortable that might make everyone, I think we would have to treat it as a legitimate exercise of academic freedom.
There is no simple formula for distinguishing the two cases, what the issue comes down to is the seriousness of the arguments being deployed. This is one of the reasons that we have academic disciplines, and why we give them substantial autonomy to set their own intellectual standards. Psychologists have their own sense, collectively determined, of what constitutes serious and important research. Philosophers have their own sense, collectively determined as well, of what constitute serious and important arguments, or positions, or worldviews. This is how we decide that Aquinas’s work remains debatable in a way the Francis Galton’s is not. This is actually one of the most important distinctions between “academic freedom” and the constitutionally protected forms of “free speech.” The latter says that no content-based discrimination is permissible, while the former often involves quite the opposite exercise, of making content-based judgments that can only be carried out by those with deep knowledge of a field (i.e. not by students, not by journalists, not by politicians, etc.)