Spending today (yet again) sitting in the court of session listening to the Scottish government discuss its determination that some men should be treated by like women, in one way or another. This time - prisons. I expect to hear much talk “balancing of rights”. But/
As others said, this is a case where an attractive-sounding concept has been introduced into a context where it simply does not belong. Whether we’re talking about rights as moral/ethical, protected in domestic law or international human rights standards…/
there are plenty of times where I don’t have a right to something and “balancing” simply doesn’t come into it. As a trivial example, I don’t have the right to…./
go down to the local primary school sports day and join the races, because of my lifelong hopeless track record of coming first or nostalgia for childhood. No one talks about balancing my exclusion from that, because it would be absurd to think in such terms in the first place…/
At a most serious level, a person who is sleeping on the streets, and whose need for food and shelter is objectively extremely high, has no right to enter your house, sleep there and be fed by you. No one is going to talk about “balancing” rights in that specific context…/
Moving closer to today’s case, there are a lot of men in the prison estate who would be assessed as vulnerable and might well be safer with women, and prefer to be held in the female estate. We wouldn’t talk about “balancing” their rights…./
Well, in fact, it worries me that the government is running arguments that leads exactly to that logical conclusion. However, no one sane would buy that at the moment. Ms Chapman, maybe, might./
And then we come to a small subset of male prisoners, who feel very strongly that they have a special right to be held with women. And some people who hold a particular metaphysical belief about gendered souls, or a “done enough“ philosophy based on appearance, or maybe/
having made a rod for their own back by keeping some of these men in the women’s estate for years, can’t face dealing with moving them out (am I getting close, SPS?), agree with these men. To believe that “balancing rights” is relevant here, you must believe that the assertion/
of entitlement to be treated as a woman creates a right to that. Unlike the assertion that you’d simply be happier or safer in a women’s prison, less at risk of dying if I let you into my house, or more likely to win something if you’re allowed to enter a primary school race./
It is, in other words, very far from a given that there are rights here that needs balancing. And the argument as to why there is would have to be made from very first principles, before “balancing” could be raised at all. Feeling sorry for people, for example, is not enough./
You should feel very sorry for anyone sleeping out in the streets in the current weather. That doesn’t mean I’m going to argue that they have a right of some sort to enter any house and seek shelter. And if you told them they did, you would not be being kind./
“Balancing rights” is irrelevant in today’s case, in my view. But even if you disagree, to argue it at all you without first have to make the argument fully from first principles why there is a right among this subset of men based on their assertion of it./
And if there’s one thing I know for sure that I am not going to hear in court today, or ever, not even incoherently, let alone coherently, it’s the Scottish government making that argument.
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