By JP Floru

Hearing Trevor Phillips live is always a bit of a treat.  He did not disappoint at Policy Exchange on Tuesday.  The man oozes integrity.  He is not an extremist, clearly well-intentioned, trying to better the world.  Yet I disagreed with him – as it seems that the method used to fight discrimination is itself discriminating.  And yes, we can do much better – if we return to the age old practice of equality before the law.

Stereotyping is often at the root cause of racism, bigotry, and discrimination.  We are all at it.  We may for example say, that “Germans have no sense of humour”.  This is wrong because categorising humans into groups is hopelessly imprecise.  It will be unclear who belongs to the group, and not all individuals will have the characteristics we ascribe to it.  And we certainly will not know every German personally.  That example is benign, but endless repetition, goose-stepping and clicking heels in the presence of Germans would land it in a totally different category.  Stereotyping may result in hate and terrible crimes.  People will treat others who they have categorised into a group with perceived characteristics differently.  They will perceive “good” and “bad” groups, and discriminate or prefer accordingly.

Unfortunately, contemporary anti-discrimination policies do precisely the same.  They stereotype – and treat individuals differently, according to a ranking into “groups” and “better groups”.  The stereotyping is done in a scientific way, with statistics.  But that only makes them less imprecise than stereotyping in the pub.  For example: “Black men are three times more likely to be unemployed than white men”.  The fact that this may statistically be correct does not make it exact.  It will still be imprecise to the extent that a large number of individual black men will never be unemployed and should therefore not be categorised, or given legal privileges, with the less fortunate ones.  Categorisation into groups is stereotyping by an educated person.  On the basis of these scientific stereotypes policies are then developed.  These create legal categories of groups of people with “higher” rights. It creates first class and second class groups.  In fact, a wrong is remedied by a new wrong.  It may also create animosity, or even hate, from the second class groups.

Take for example hate crime legislation.  Historically, a murder was a murder, irrespective of the intention of the murderer or the identity of the victim (1).  Nowadays it is apparently more serious to murder certain individuals, than others.  Certain victims count less than others in the eyes of anti-discrimination legislation.

I asked Trevor Phillips this question, and (unless I misunderstood his answer), he seemed to agree with me.  He nonetheless defended discriminating anti-discrimination legislation because “we live in the real world”.  He certainly has a point:  For example, a black suspect is probably likely to be treated differently than a white suspect.  Equality before the law may often be inexistent in practice.  Hence anti-discrimination legislation: because all else failed.   If we see it through benign glasses, the anti-discrimination legislation would act as a signal.  It is a defensible position – but we can do much better than that.

It’s important to point out that it is the categorisation of humans into groups which is the root cause of the problem.  Every individual is unique.  Not one is the same as another.  By allocating individuals into groups we de-humanise – we reduce humans into herds.  Only by treating humans as the individuals they are can we do justice to all.  This is precisely which inspired the historic idea of equality before the law: the state treating every individual the same, without distinction between groups, and without privileges for “higher” or disfavour for “lower” groups.

It cannot be right to fight a wrong with a wrong.  We should not fight discrimination by introducing new discrimination.  Perhaps the traditional doctrine of equality before the law failed because we never tried to explain it very hard.   Yes, it will take a lot of effort and education to explain it to say, those enforcing the law, or to civil servants.  And to individual and private businesses treating people equally irrespective of irrelevant characteristics may also require a lot of educating and convincing.  But we should never shrink back from the enormity of the task.  We must do it because it is right.

(1) The lawyers among you will appreciate that I am simplifying, for argument's sake.

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