Equality or Inequality? Discrimination or equity?

A discerning reflection on the draft Equality legislation

Published on https://newsbook.com.mt/en/equality-or-inequality-discrimination-or-equity/ 11 August 2020.

A lot has been said about school ‘ethos’ and the parameters that define such an ethos and allow educators to work within that ethos, especially, if privately or publicly they may not adhere to that ethos. Should ethos play a role in the recruitment processes? And what, in one’s private and public life, would be considered as unacceptable ’practices’ that an employer would deem as liable for disciplinary action? Should the school ethos determine the content of the curriculum, how it is taught, and the textbooks? Could school ethos be used to forbid certain books to be in a school library, if they are found to spread ideas contrary to the principles expounded by that ethos?

On the other hand, should the State impose a one-size-fits-all curriculum that straitjackets content and principles uncritically? Should the State, through the implementation of any law, muzzle educators who would have to walk a tight-rope, lest they be accused of discrimination, even through non-verbals? Do not schools have a right to their distinctive identity? Do not parents have a fundamental right to choose from the various schools the one that they feel is best for their children? Should any child have the power to throw out an accusation of alleged discrimination against any educator and the onus of proof would be on the educator? Should the educator be considered automatically guilty unless proven innocent?

An inclusive ethos

An institution that is truly embracing would not have any problems with embracing people who are different, and have different opinions and views, subject to the very basic rule of mutual respect towards one another. An embracing ethos would allow discussion and coming together of different views, however different from each other, and allowing all sides the possibility to present their views clearly and in mutual respect. An embracing ethos would welcome difference of race, gender, sexuality and religion without any hindrance and would celebrate the uniqueness of every diversity.

It is one where an educator and a school can freely express their own values and celebrate them, but clearly, in full respect for other dissident values, even if these are embraced by others within the school (including educators) both privately and in public quarters. It does not need to muzzle another person’s views, if the school manages to create a respectful environment that is built on dialogue, sharing of experiences, understanding, and a mutual search for the truth. It is only by learning to use the tool of discernment and applying it critically and equitably to different points of view, that one understands better where the way of truth lies.

Should any school, like the Spanish Inquisition of old, take action against someone who espouses even publicly ideas that go against its ethos? Well, for a first, there is a code of conduct for educators, that regardless of the school and its ethos, should be followed by all educators across the board. That code of conduct guides teachers in the way they dress and behave both on and off campus. But, if an educator is able to espouse his ideas with respect to others, and he does not in any way promote or encourage violence and does not undermine the fundamental human rights of other persons, then, why should anyone stop him? Naturally, there are limits, and there is fundamental respect towards the other. This should not be anarchy, because it could undermine the fundamental human rights of every person.

Conscientious objection

Much has been said about the ‘right’ of people to refuse to promote or implement anything that goes against their ethical and moral beliefs. Fine, in principle. In practice? What if my ethical beliefs are by their very nature exclusive, non-embracing, racist, misogynist or homophobic/transphobic?

It is true that there exist ‘protected characteristics’, but there is the very danger that with the implementation of a vaguely defined conscientious objection, those same ‘protected characteristics’ would be overruled. Unless, that is, a very specific wording is adopted that clearly delineates specific scenarios where that right could be implemented.

The problem is, that we may never completely know how people may try to interpret laws in the future. Something as objectively justified as a ‘conscientious objection’ may well be abused and manipulated towards quite another end. History is replete with such intentional abuses of the letter of the law. How can we truly know if any school leader will not, in some distant future, use conscientious objection for a blanket whitewashing of the protections given by this Equality Bill?

It is understandable, of course, and even legitimate, that the law should protect persons and entities from being forced to do anything that goes against their beliefs. Yet, one also needs to look at it from a different angle as well. There needs to be clear reassurances that the fundamental human rights of the clients requesting a service are respected, especially if these services are within their legitimate rights as regulated by law. The State must ensure that there are other viable and accessible options, while the private institution must still ensure that the human dignity and rights of that person requesting services from it are respected at all times, regardless of whether it can or cannot provide that specific service.

It gets a bit more complicated where schools are involved. Can a school or a teacher refuse to teach a particular topic because it goes against their ethical and moral beliefs? Can they use the conscientious objection to legitimate their refusal? Once again, that is where an inclusive ethos can play a role. As educators we have no right to white-wash or even make invisible realities that are in the world out there. As much as I might not agree with them, I cannot simply give the impression that they do not exist or they are simply wrong because I do not agree with them. That would be a disservice to truth.

This brings us back to the problem of the conscientious objection. That we need a system of clear checks and balances in an Equality law is fundamental. No person’s rights are absolute, if these end up undermining the fundamental human rights of another person. Any Equality Law that tries to create absolute rights would become draconian and self-defeating in the long run. We would be creating a witch-hunt or an illusory and false understanding of ‘rights’ if individuals or institutions are allowed an ‘absolute’ in terms of their conscientious objection.

So, what we really need – if this conscientious objection is to be included at all, is to have clear specific cases where it can be used. Otherwise, we might well be creating a minefield that would render null and void all protections we are busily setting up in this Equality Law.

Conclusion

I look with hope at an equitable society, where people all have a place and a role to play and who are inclusively embraced. I look with hope towards a society that might not need conscientious objection, because we really would know how to respect each other.

Alas, that is not the real world for now.

Instead, let us continue working towards uprooting all forms of discrimination and embrace genuine inclusion.

A better written Equality Law might help. But, let us not muzzle it too much.

C. Vella

21.07.2020