I noted the invitation to make a submission on the subject of a LGBTI inclusion strategy and would make the following comments. In general, I believe that Governments are good at rectifying technical issues and not good at social engineering. Legislation tends to be something of a blunt instrument and although social elements are present in tax and criminal law, they are best kept to a minimum. If there are still legal or tax inequalities then they should be addressed. For example, the issue of one partner being forced to testify against another as against the protection afforded to a married couple is something the legislature has to resolve (Lyons, 2019).
That society changes and presents new challenges is illustrated by the above example but the title of the Strategy relates to the LGBTI community and it would be interesting to know who is being included. A quick search on the Net comes up with something called the LGBTTQQIAA+ (Urban Dictionary, 2011) which is an acronym which I hope you understand because I don’t. I believe that the ‘+’ at the end is meant to be inclusive of any future group that may want to come in under the LGBTTQQIAA umbrella. I only mention this because the term in the Inclusion Strategy is imprecise, subject to constant change and open to political vagary.
There is another problem with the definition which is that it is not only open ended and ill-defined but when applied to both legislation and what might be called positive action, is subject to the principle of unintended consequences. In both cases it leads to exclusion and that is what Matthew Parris calls the Parris Principle. This states that, “statute cannot explicitly include without implicitly excluding.” (Parris, 2019) For example, this is true where a ‘hate crime’ “is perceived to be motivated by hostility or prejudice towards someone based on a personal characteristic.” (Parris, 2019) In the UK there are five groups who are specially listed and if the Law Commission has its way misogyny will be added. In constructing a Strategy for one section of the community we run the risk of alienating the rest. Does this really matter in relation to the proposed strategy? We have seen, in other countries, the instability created by a population who believe that they are excluded from the political process. I would suggest that we saw a manifestation of this in the recent Presidential election in a response to the rather crass remarks by Peter Casey. By seeming to promote one section of the community over another we run the risk of creating a feeling of resentment in the wider community.
The proposed strategy also confirms some in the belief that government agencies are not neutral and even handed. This is evidenced by the intense lobbying of government by activists and minority interest groups where the debate does not seem to include the wider community. The Ashers case would seem to be an example of this. Those inclined towards conspiracy theories might see a connection between two gay customers each requesting a cake with a message supporting gay marriage from a Christian baker, on two continents. In the case of the Equality Commission of Northern Ireland they supported the gay customer all the way to the UK Supreme Court where they were defeated, 5-0 on a ‘compelled speech’ decision. To an observer it seemed that there was more a relationship of client and agent with the plaintive, rather than one of a neutral agency supporting equality for all.
The other strand to the Ashers case was the question of whether one part of the community has superior rights over other parts. In this case the plaintiff might have had a better case under the law of contract rather than equality but this was never really about a message on a cake but was all about pushing the boundaries. To my mind the sort of initiative proposed under the title LGBTI Inclusive Strategy runs the unintended risk of the perception being that the IRHREC and Dept. of Justice do not represent equality for all but only their clients.
- Conclusion
• Governments are best correcting technical and legal inequalities in tax and employment law, for example
• Legislation and ‘positive action’ are blunt instruments and are liable to the doctrine of unintended consequences.
• Inclusive positive action or legislation means excluding someone.
• There are a growing number of people who feel that they are not being listened to and a strategy of this kind is perceived to be confirmation of that belief.
• It is difficult to establish a strategy for a group whose membership is open ended.
• Do not become a hostage to an ideology - Recognise the whole community rights when considering those of minority groups
References
Lyons, n. (2019, 1 31). Flanagan Told to Protect Couples. The Times, p. 4.
Parris, M. (2019). We’re on a Slippery Slope. The Times, 16.
Urban Dictionary. (2011, 3 15). Retrieved from https://www.urbandictionary.com/define.php?term=LGBTQQIAAP