Questions of Identity

It is natural to look upon the Equality Bill, unveiled by Harriet Harman last Monday, as the apogee of New Labour social engineering, the final legacy of all the politically correct tsars and quangocrats whose efforts have given so much work to lawyers over the past few years. Charles Moore, writing in the Telegraph, calls it "the culmination of decades of struggle" and "a single web to bind the entire structure of society". Most attention has been paid to the most novel aspect of the bill, a new requirement to promote social equality, seen by many as a return to the politics of envy and class consciousness. Of greater moment, however, may be the way in which the bill brings together previous anti-discrimination legislation to create a single legal infrastructure.

According to Moore, "the purpose is not to simplify, but to make everything indivisible". He argues that Equality is "an all-embracing faith", that "if you are in favour of, say, maternity leave, you must also support legal recognition of transsexuals". How all-embracing is it, though? The bill enumerates nine "protected characteristics". And a pretty mixed bag it is, too: race, age, disability, gender, gender reassignment, pregnancy and maternity, marital status, sexual orientation, and religion or belief. Some of these require further definition: "sexual orientation", for example, is defined by reference to the sex of the persons to whom one is sexually attracted: it is gay, lesbian or bisexual. There may be other types of sexual orientation - towards items of machinery, or buildings, or a preference for multiple partners, or a particular mode of sexual expression. But these do not constitute "sexual orientation" for the purposes of this or any other law.

Other anomalies abound. "Nationality" is protected but not regional identity: one can legally discriminate against Brummies, but not against Australians. The category of "religion or belief" includes protection for atheists and adherents of "philosophical systems" that may not be generally considered religions. But the wording is rather vague. How "philosophical" does a belief have to be to attract the protection of the law, and what is the difference between a belief and an opinion? "Political beliefs and beliefs in scientific theories are not religious or philosophical beliefs for these purposes" says the explanatory notes. Why not? Marxism is far more of a coherent "belief system" than atheism, which has no doctrines and is merely an opinion concerning the non-existence of a Supreme Being. The explanation makes no sense: it is mere assertion.

The bill offers no protection to those who cannot fit their particular "characteristic" within one of the nine categories. The result is obvious, if paradoxical. A law which claims to remove discrimination has the effect of imposing a new, legally defined, discrimination. Henceforth there will be two categories of person: those with "protected characteristics", against whom discrimination will be unlawful, and those without, against whom discrimination will remain legal, and in some circumstances may be encouraged. Previous laws were at least introduced to tackle specific prejudices or perceived discriminations. This new "Equality" bill, by contrast, puts explicitly into law the pernicious notion that some people are more equal than others.

An example. People with red hair often find themselves subject to name-calling and bullying, at school and at work. One family in Newcastle was forced repeatedly to move home because several of its members had red hair. "Gingers" may be the butt of jokes that would be illegal if applied to members of an ethnic minority, to women or (now) to homosexuals, and which are just as hurtful to their self-esteem, their education or their career prospects. Yet there is nothing in the bill for them, an oversight that causes the Heresiarch particular personal regret.

Or consider the horrific murder of Sophie Lancaster, beaten to death by thugs who objected to her choice of clothing. Had she been black, or lesbian, her death would have been categorised as a "hate crime", and the punishment increased accordingly. But was it any less of a hate crime because she was killed, at least in part, for being a Goth?

And what of fat people, who may find themselves subject to increased harassment as a result of government enthusiasm for intervention in people's lifestyles? Fat children have always been vulnerable to taunts, but now that their weight is seen as a problem attracting adult censure bullies will begin to feel self-righteously justified. I suppose those whose obesity is sufficiently extreme might be able to claim the protection afforded to the disabled. Bizarrely, buried in the explanatory notes there is an unexpected boost for some smokers. It will be illegal, we are told, for a newsagent to refuse to sell cigarettes to a pregnant woman.

Why are some characteristics protected, and not others? It's difficult to detect any logic behind the rag-bag of categories addressed in the bill. What connects being pregnant and being Muslim, for example, or being seventy and being gay, but distinguishes between having black skin and having red hair? Instead of its careful enumeration of categories, why not a much simpler, and easier to understand, ban on discrimination on any irrelevant grounds?

The only difference I can detect between the included categories and any others are that they have benefited from long-standing and successful political campaigns. A "protected characteristic" is one that has attracted the support of the Equalities industry, that knows how to mobilise support, and that fits with the political agenda of New Labour. It might be thought that people who lack organised advocacy or the moral sustenance that comes from "group consciousness" would be more, rather than less, deserving of the protection of the law. But that isn't how politics operates.

But how does a trait, an ideology or a lifestyle make the transition to the coveted status of "protected characteristic"? An interesting test-case - "evolution in action", if you like - is that of sadomasochism, or BDSM. For long hidden out of sight, the stuff of Red Top exposés, shame, tittering and moral disapproval, what was once condemned as "perversion" and listed in some psychiatric manuals alongside paedophilia has recently attracted (if not universally) more sympathetic coverage and more widespread acceptance. And with greater visibility has come the demand for spankers and submissives to get their share of the Equality action.

Two events in particular have galvanised some within the BDSM community in the direction of political activism: the victory of Max Mosley in his privacy action against the News of the World, and the "extreme prnography" sections of last year's Criminal Justice and Immigration Act. The former revealed unexpected levels of public sympathy as well as judicial support, and led Mosley himself (giving evidence to a Commons select committee) to liken his situation to that of gay people thirty or forty years ago. The latter highlighted the negative attitudes still prevalent, with consensual sex acts casually associated in the minds of lawmakers with violence and abuse. Activist groups such as Backlash and CAAN have formed to campaign for kinksters' rights to access consensually-produced erotic material, and for the protections against discrimination in work now accorded to gay and bisexual people to be extended further. Some areas, in which discrimination appears to be extending rather than reducing, form particular causes for concern. BDSM people who work as teachers or doctors are still liable to lose their jobs if exposed in a local newspaper, for example, although their activities are generally private and involve consenting adults.

CAAN is currently urging its supporters to contact the Equality and Human Rights Commission and protest against the lack of legal protection. Last October, activist Clair Lewis tackled Trevor Phillips (EHRC chair) at a fringe meeting at the Labour party conference. He was, by all accounts, unable to give her a coherent explanation as to why gay people deserved protection while kinky people did not. He did, though, suggest that gender-directed orientation might be more intrinsic because gay people were "born that way". But that begs all sorts of questions. The extent to which sexual orientation is inborn, fixed and predetermined remains highly controversial, raises thorny issues of personal identity and self-determination, and is in any case a scientific rather than a legal or moral debate. Many BDSM people, moreover, report that their predelictions were, if not inborn, then certainly present from an early age and form a core part of their personal, not merely their sexual, identity. Clair Lewis herself tells me,

My personal view as a pansexual person is that my 'kinkiness' is feels no different a part of me than who I am attracted to. It's all part of 'who/what attracts and excites me' - everyone has a 'who/what attracts and excites me' it's just for some of us, it's illegal, and for many people it's disapproved of.

Be that as it may, the EHCR has made clear in correspondence that, while the law remains as it is, protection of BDSM people from discrimination is "beyond their remit". While being gay is legally an "orientation", being kinky is merely a "sexual practice". This, surely, is neither logical nor fair.

The real reason why current and proposed legislation protects those with a gay identity, but not those with a kinky identity, has nothing to do with philosophical questions about what constitutes personal identity and everything to do with the contingent facts of history. Gay people adopted a public persona; campaigned, marched and organised; and eventually achieved significant political traction. So did a number of politically active Muslims, who through "multicultural" policies have succeeded in replacing a previous ethnic (and secular) identity with an explicitly religious one. This has been convenient for both "community leaders" and local and national politicians, but arguably disastrous for society as a whole. As Kenan Malik puts it, "Rather than appealing to Muslims as British citizens, with a variety of views and beliefs, politicians of all hues prefer to see them as people whose primary loyalty is to their faith and who can be engaged only by other Muslims."

Will Clair and her fellow BDSM activists succeed in getting kink onto the magic list of "protected characteristics"? The omens are good. The NUS's Lesbian/Gay committee recently adopted a resolution declaring BDSM rights to be "an LGBT issue" and expressing solidarity with CAAN. Just a bunch of students, of course: but the high-flying cultural commissars of New Labour's Equality quangocracy were a bunch of students once, too.

But what will they call the oppression they are fighting? Kinkophobia?


monkeyfish said…
#race, age, disability, gender, gender reassignment, pregnancy and maternity, marriage and civil partnership, sexual orientation, and religion or belief.#

Yet again the discriminatory bastards omit 'scouse'.

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