Why I don't agree with positive discrimination
This is my contribution to the debate 'We should not engage in positive discrimination in order to promote diversity and inclusivity amongst the judiciary' held at the Bristol Civil Justice Centre
We should not engage in Positive discrimination to provide greater diversity in the judiciary
I am against it on simple utilitarian grounds – it doesn’t work
But worse – it causes positive harm.
But first, we need to define our terms.
The Equality Act 2010 gives no definition of positive discrimination, but I think its generally understood to mean the automatic favouring, without proper consideration of merit, of under-represented individuals from minority groups over individuals in majority groups, or the preferential treatment of a group of people because they possess a protected characteristic such as race or disability.
Positive discrimination is likely to be unlawful and the debate therefore dead in the water; of course we ought to be against unlawful action.
So I will proceed on the basis that what we are arguing about here is positive ACTION which remains lawful. That is where proportionate steps are taken by an employer to lessen any disadvantage, or remove barriers or obstacles, that it reasonably believes are faced by people from protected characteristic groups.
Professional network the Women’s Engineering Society (WES) defined it as measures taken to support the recruitment of underrepresented minorities “to redress past discriminations or to offset the disadvantages arising from existing attitudes, behaviours and structures”.
This removes the obvious and I think compelling argument about positive discrimination; that it makes merit subordinate to a protected characteristic, which has immediate and serious implications for an individual and the wider organisation if he or she is offered a job beyond their actual capabilities.
But so long as we are making decisions on merit and just throwing in a little extra help for what we perceive to be a unfair disadvantage, how could I possibly object?
Because I believe it doesn’t work and it causes positive harm.
It doesn’t work
The reason it doesn’t work is that the assessment of the disadvantage and the decisions about what to be done to mitigate it are both made by the privileged group which often does not properly understand either the nature or the extent of the disadvantage
It causes positive harm
Creates positive feelings about being seen to ‘do something’ inclusive which inhibits proper reflection on the actual effectiveness of their actions – or if mere ‘performative inclusion’ makes the action the end goal in itself.
Examples about nature and extent of disadvantage
Let me give you an example from my work. I have been instructed in care proceedings involving parents with learning disabilities for over 20 years. In that entire time I have noticed very little difference in the outcome of care proceedings; every single case in which I have been involved has ended in an order removing the children from the parents care.
Only a few weeks ago, I was involved in a case involving parents with learning difficulties where the most basic and obvious of lessons that professionals should have learned about their interventions, were ignored. The social worker hadn’t read the Best Practice Guidance. There was no effective communication between the various groups tasked with supporting the parents. The Judge was to be commended in her efforts to help the parents cope with the actual hearing, making changes to the layout of the court room, raising issues of how the bundles should be best presented etc. It was a well meaning but ultimately futile attempt to restore the balance for these parents.
But all that happened, as I have seen now play out over 20 years, is that the care proceedings turn into a particularly cruel piece of theatre, where we pay lip service to the notions of fair proceedings but we all know what the eventual outcome is going to be. This case was made particularly more tragic by the parents having gone through this experience before and finding it traumatising and that the local authority had spent nearly £300K on 24/7 'supervision' of the parents over 10 months without any apparent agreement about or understanding of what work would be done to help them increase their parenting capacity.
There was no positive discrimination or positive action that could have helped these parents by the time we were in the court room. They had a life long disability requiring on going help and support which can only be provided effectively if professionals are able to communicate and plan consistently. The proliferation of conferences, job positions I have seen with the title ‘Equality, Diversity and inclusion’ over the last 10 years appear to have made no dent whatsoever on the outcomes for disabled people which remain poor.
And I suspect this is entirely because including disabled people can be very expensive and requires investment in physical infrastructure; we aren’t included because someone wears a rainbow lanyard or talks about their pronouns. I have heard disturbing anecdotes from my work with the Bar Council Disability Group of Judges with mobility issues unable to access their own court room when a lift was out of action.
Let me give you another personal example about ‘extent’ and how far back disadvantage is cemented.
My daughter has probably a fairly unusual primary school history. For a year she attended an inner city school in London and then we moved to Wiltshire where she attended a fee paying school. Her first ever Sports Day at the London school aged 5 involved running races on an ancient basketball court. The asphalt was torn and coming apart, lots of nasty trip hazards for little feet. They couldn’t do anything other than run from one end of the court to the other, they had no access to a field, to a pool, to a pitch. When she went to the private school, she had access to a great number of fields, a swimming pool and even ponies to ride. I asked her out of curiosity once what she remembered of her first school – I didn’t feel I belonged there she says. I did feel I belonged at the private school.
Of course she felt more comfortable in the private school. The message given to us by our physical environments are extremely powerful. those children at the inner city primary school were told that the crumbling basketball court is what you are worth. We know that disadvantage kicks in for children from deprived economic backgrounds even before they are born. They are given that message every waking moment from their sub optimal physical environments that this is where they are expected to be. These children are unlikely to end up as Judges if some kind of positive action only kicks in for them once they are adults.
So why do I think it causes harm?
I think there are two main ways it causes harm.
The first is the more ‘traditional’ objection to positive discrimination I think it leads to an increased risk of perpetuating bias because there is a belief that people are not selected on for their intrinsic skills and extrinsic efforts but for a characteristic that they did not choose and cannot change.
Civil service analyst Louise Maynard-Atem put it this way, arguing that t positive discrimination “serves not only to lessen the sense of achievement for those on the right side of the coin, but also to foster resentment for those who aren’t part of the chosen minority”
I agree there is a reasonable argument that by simply increasing the visibility of those protected groups, will work to reduce discrimination by virtue of familiarity. We are more likely to fear what we do not know. But this doesn’t have an impact on those protected characteristics which require more than simple recognition – such as disability and nor does it ameliorate the impact of the disadvantages cemented by poverty and lack of educational opportunities.
But I think the second and more dangerous way it does harm appears to be a relatively modern creation, within the last decade or so. The ideals of positive action have become closely identified with performance and signalling what you THINK about positive action – i.e. the focus becomes on the person performing as a mark of their status and worth, not on the individual you are trying to help – black, disabled, gay people are in fact denied their individuality and simply become ‘tokens’ representing a larger community. They are seen primarily in terms of their protected characteristics.
Pictures of uniformed police officers ‘taking the knee’ to show their support for Black Lives Matter is not a rational way to attempt to combat racism within the police force but an excellent example of attempts at performative inclusion – which probably alienates as many people as it inspires
That so many retain a faith in the use of performance, I see as an example of the father of sociology, Durkheim’s ‘collective effervescence’ - referring to moments when the group of individuals that makes up a society comes together in order to perform a religious ritual.
This encompasses embracing the right ideals and expressing them – what we disparagingly call ‘ virtue signalling’. And contains in itself an epistemological justification – we claim our belief that this is the right thing to do has a rational and true reason behind it. it feels good to feel guilt! It makes us feel that we are doing something, achieving something, when all we are in fact achieving Is to broadcast our admirable qualities.
This reframing of commitment to Diversity and Inclusion as some kind of performance has had particularly damaging impacts on the issues of sex, gender and sexual orientation – the ‘performances’ have solidified into what at times feels like a quasi religion, those who object find themselves very much ‘excluded’ to the extent that they are investigated by their regulators, or lose their jobs and have had to go to courts and employment tribunals to secure their most basic rights.
I fear this is an inevitable by product of where ‘performance’ becomes the end goal in and of itself and means the noble aims of ‘Equality, Diversity and Inclusion’ risk becoming wholly corrupted.
Conclusion
For those of us disadvantaged by our ‘difference’ – be it our disability, the colour of our skin or our sexual orientation, what we need is a society that is structured to minimise the impact of economic and educational deprivation from the earliest age possible, encourages tolerance between different groups and does not focus upon the protected characteristics as primarily a way to signal our own virtue and to punish others who do not share our definitions of what is virtuous.
None of us are a box to be ticked. We are more than simply characteristics we did not choose and cannot change.
The Ministry of Justice showed how its done in its press release of 28 September 2022
For the first time in England and Wales, Deaf people have been able to fulfil their civic duty and serve on a jury, supported by British Sign Language (BSL) interpreters.
First Deaf jurors complete jury service with British Sign Language interpreter support
Law change allows interpreters in the jury deliberation room as the thirteenth person
Move opens jury service up to thousands more people
I don’t know the cost of this, but I am betting it was considerable. What we weigh this against however is the cost of continuing to deny people the opportunity to use their talents, or even to access to society itself, because of a protected characteristic they did not choose and cannot change.
I am firmly against positive discrimination or positive action as In my view it has over time morphed from a noble idea into not merely a harmful distraction from the work that needs to be done but an instrument of illiberalism which has is used primarily to promote a political ideology rather than to the protect the vulnerable.
So I urge you to vote in favour of this motion.
My sons’ school has adopted a rather grotesque version of positive discrimination- any pupil interaction is seen through the lens of identity. Any incident between boy and girl starts with his original sin and actively seeks out evidence of misogyny and/or sexual misconduct. If anything is uncovered, the boy is labelled and shamed. No agency is attributed to girls- eg their capacity as fellow humans to hurt, insult and/or exaggerate. In any incident the girl’s reports are taken as facts and the boy’s explanation, disavowal or contextualisation will only be used to lessen his “crime”. I have concluded that under current safeguarding procedures, boys are not safe in the school environment. Well-intentioned ideals to prevent real incidents of clumsy misogyny and sexual harassment have morphed into something very different. No incident is treated as an opportunity for careful and measured coaching in which all participants can grow and develop. All pre-pubescent and teenage boys are treated as members of an oppressive group guilty of toxic masculinity that must be suppressed at all costs. The boys are terrified of interacting with girls, particularly as there is a drive to criminalise wherever possible. (Non crime incidents may still be reported to police and social service and kept on a record). It is truly terrifying as a mother of sons, and insulting as a feminist to see the well-intentioned path to hell we are providing for our children. Interestingly, if I protest I am treated as a shrill outlier....not my idea of equality to have my voice removed.
Very interesting, thank you.
I follow this subject - albeit somewhat loosely - in American colleges and their input and application systems. And the use of DEI tactics is much more pronounced, misguided and dangerous long term, I am convinced. I hope as ever that we do not follow their ways and methods even more closely and enthusiastically than we already seem to be doing. Evidence suggests that some of this DEI process can have the reverse effect to that which intended.
Who would have guessed? Treat people as untrusting, racist idiots and you get pushback...