15 years after I bought it, I’ve finally started reading The Idea of Justice by Amartya Sen. I’m not great at digesting philosophy and so it’s slow going, but I’m currently about a quarter of the way through (please; no spoilers about who did it).
One of the concepts Sen introduces early in the book, which draws from both eastern and western philosophy, is the distinction between the Sanskrit words for justice, niti and nyaya.
As I understand it (and apologies if I’m getting this wrong), niti is justice in the sense of how it exists in an institutionalised framework — how a judge interprets the law, for example, or perhaps the winners and losers within an economic system. Nyaya, by contrast, is the concept of justice in a wider, more universal sense. It isn’t concerned with what is right within a system, or even within the world, but what is just at a fundamental level. I want to say it is the difference between being focused on the niti gritty as opposed to the whole banyanya, but I feel that Sanskrit scholars will track me down and shoot me.
In my experience (and to be clear this is my view here, not necessarily Amartya Sen’s), the main reason that people from both the right and left hate liberals in the way that they do is that all too often they appear far too obsessed with niti, and not concerned enough about nyaya.
Certainly when I was involved in the Lib Dems, we used to talk a lot about the tensions within the party between the Whigs — members of the party that craved respectability and being a part of the establishment — and the Radicals — people who were happy to burn down what they considered to be a bad system. In practice this frequently amounted to the same thing.
What has this to do with “trans quotas”? Well, earlier this week the Liberal Democrats announced, just before voting began on their internal elections, that following legal advice they would be reinterpreting their rules on gender quotas on committees to mean that trans people would be excluded from counting as a man or a woman for the purpose of being elected. They will instead be allotted a third “trans” quota. This was despite Lib Dem conference rejecting the proposal last month — refusing even to debate it.
This is in light of the recent Supreme Court ruling, judging that the terms “man” and “woman” in the Equality Act refer to “biological sex,” a nebulous term which the Supreme Court has still not defined, but which has been broadly understood to refer to cisgender people. It’s not clear to me why this is the case since the EHRC — not a body which is currently viewed as being sympathetic to transgender people — has not amended its guide to political parties since the Supreme Court ruling, or even published draft amendments to it.
It certainly is the case that the Equalities and Human Rights Commission launched a consultation this summer in light of the Supreme Court ruling for its general guidance, focusing on things like public toilets and changing rooms, but these have different principles at their heart. After all, the row about changing rooms has always been presented as an argument about public safety (erroneously and outrageously in my view), which obviously doesn’t apply in the case of quota systems.
It is worth noting the government received the EHRC’s finished guidelines several months ago but has yet to approve them, to the ire of EHRC Chair Kishwer Falkner, who opted to voice her disgruntlement in public. Concerningly, in doing so, she acknowledged that the EHRC had not submitted an Equalities Impact Assessment on the new guidelines until just a couple of weeks ago after the government questioned its absence.
It looks increasingly likely that these guidelines would run afoul of human rights legislation. The draft guidance proposed excluding trans people from being able to access both male and female spaces, effectively excluding them from public places entirely. It should also be noted that the Supreme Court judgement itself is currently being appealed, not least due to its controversial decision to refuse evidence from any transgender individuals or groups. It is not at all clear where the legal consensus of this will be in a few months time. It’s quite possible that this will have to be resolved by clarifying the law through primary legislation and amending the Equality Act itself. In short, interpreting the legislation right now is like attempting to hit a moving target.
Back in the day, I ran two parliamentary constituency election campaigns for the Lib Dems — Leeds North West in 2001 and East Dunbartonshire in 2005 (successfully in the latter case). Back when I was learning the ropes, one of the bits of advice we received was to avoid having a lawyer as your election agent if possible. This wasn’t, to be clear, because of any intention to break the law. It was because lawyers are members of professional bodies and therefore subject to a higher standard of scrutiny than laypersons; if they make a mistake they could find themselves disbarred. For the same reason, they also have a tendency to interpret the law in the strictest way possible. That’s their job.
Lawyers are not politicians, and they frequently make very lousy ones when they try to be (see, for example, the current incumbent at Number 10). Legal advice is not law. I don’t believe the Lib Dems have published their legal advice on this Supreme Court ruling but I would not be at all surprised if it fell very short of saying that allowing trans people to be included in the gender quota of their choosing was in breach of the Equalities Act. Rather, I suspect that it in fact said something along the lines that they might be subject to legal action if they did so. Interpreting such advice to decide that trans people should be excluded in this way is not “following legal advice” but to make a political decision based on the likely cost of legal action.
It certainly is the case that trans-hostile groups have recently become very keen on using the law to marginalise transgender people, as the “For Women Scotland” Supreme Court ruling itself illustrates. After all, the money you give to J. K. Rowling via her books, films and TV shows has been pledged to spend on trans-hostile legal action (please don’t do this). The latest controversy over quotas is just the latest legalistic salvo in the campaign to marginalise trans people within the Lib Dems.
You can draw parallels between this and how wealthy individuals and organisations use libel laws in the UK as a weapon to silence their critics. Legal cases don’t have to be legitimate to be effective, they merely need to be expensive.
Lately, the Liberal Democrat response to this legal bullying has been to roll over. In some cases, this is no doubt because of sympathy towards the anti-trans cause. But I think the core problem is in many ways more pernicious than that. I think it’s because far too many liberals, and Lib Dems in particular, have a tendency to view obeying the “rule of law” as far and a way more important than considering if the law itself is just.
It’s a tempting notion in this current climate, particularly when you only have to look over the Atlantic to see how the law is being routinely ignored by a Mob Boss of a President and can see the UK heading down a similar path, but it’s a trap. It’s a trap because bad actors are all too happy to use the law as a tool for injustice. Liberals who can or will not see that are not worthy of the name.
Sadly I see far too many echoes between this current debacle, and the allegations against Lord Rennard of sexual assault back in 2013. The disciplinary process against Rennard collapsed because while the barrister leading the inquiry found the allegations “credible”, they couldn’t be proved beyond reasonable doubt, the standard the party had set for disciplinary proceedings at the time. Bolstered by this and the collapse of the subsequent police inquiry, Rennard’s legal adviser Lord Carlile threatened that Rennard would “sue his way back” into the party, following the party’s reticence to welcome him back into the fold. Lord Rennard still has the party whip.
That problem arose because the party decided that every disciplinary case ought to be treated as if it was a criminal case, which anyone who has ever worked in an office knows is completely impractical. The people who drafted it clearly had pretensions that they were preparing for some kind of John Grisham-authored legal showdowns, not the sort of messy situation that forms the bulk of work disciplinary cases. The Rennard scandal raged behind closed doors for years because party officials hid behind the idea that a formal process had to begin before making any discreet inquiries, knowing that the complainants would be wary of doing so due to the major public scandal that would result, with them directly in the firing line.
The Liberal Democrats aren’t the only organisation to confuse superficially fair-minded notions about people being innocent before being proven guilty as a cover for powerful men. After all this was just a few years before the #MeToo movement blew up. But as a party which defines itself by having liberal values at its core, it should have recognised how such processes can be abused.
Throw a ball in a room full of liberal philosophers, and you will hit one that has attempted to formulate a principle of justice that they consider to be of greater importance than every law in the land — whether it is utilitarianism, the harm principle or the difference principle (and more). Despite this, liberal politicians and commentators are far too often willing to set that aside and cower behind the rule of law, regardless of how much that results in them being buffeted by people who have no interest in justice and who are perfectly happy to use the law to get them whatever they want. It is a test that the Liberal Democrats sadly fail all too often, despite its membership’s wishes to be more radical and brave. This isn’t marching towards the sound of gunfire; this is duck and cover.
Precisely why self-defining liberals too often confuse justice and legalism is a question I can’t answer. Perhaps it’s because of a tendency to mythologise the 400 year liberal enlightenment project, and the human tendency to look at ourselves as sitting at the pinnacle of civilisation rather than at a staging point (or even to see history as a thing that even has a peak, as I’m guilty of doing here). Perhaps it’s because liberal institutions have a tendency to be too male, white and middle-class and thus struggle to engage which deviate to far from their internal norms. After all, notions such as moving away from arbitrary power evolved at a time when to be anything but pale and male meant you simply did not count, even amongst radical groups such as the Levellers.
The irony in all this is that no one seems happy by the “trans quota” decision this week. Liberal Voice for Women, the activist group which campaigns to marginalise trans people within the Lib Dems, is outraged that the new quota will lead to too many trans people being elected to internal committees (to be clear, Liberal Voice for Women is not the representative body for women within the Liberal Democrats; Liberal Democrat Women has been consistently supportive of transgender rights and inclusion). Meanwhile, candidates in this election are being urged to write to the party and demand that any data it holds on them regarding their sex assigned at birth be deleted from all party databases. It is hard to see how this new rule can be enforced when the party cannot legally know whether any of the men or women standing for election are cis or trans. Bad law is all too often impossible to enforce fairly.
You can never “both sides” a controversy such as this, particularly when one side is arguing for basic human rights for all and the other exists solely to further marginalise a tiny minority group. When injustices such as this fail to incur the ire of senior political leaders, you should be seriously asking why. At the very least, it should inform your judgement on who you should be voting for in internal elections.
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