Interpretation of rights code absurd

The Manitoba Human Rights Code in its entirety is a misconceived and misguided attempt by the government to legislate abstract morality and in particular to prohibit, by law, people having and acting upon attitudes about others which the state considers to be unacceptable and, thereby, illegal.

Under the code, if any person has been found by an adjudicator to have breached the provisions of the act, that person may be ordered to remedy the breach and may also be required to compensate the person who has been adversely affected. A party held to be in breach of the code also is subject to prosecution and to be sentenced to a substantial fine.

According to the act, a Ukrainian or a Jewish or Anglo-Saxon employer who preferred to hire an applicant of his own background rather than a more qualified person of a different background can be ordered to reverse his action, pay compensation to the person who was not hired and also pay a fine for violating provisions of the statute.

The notion that these draconian provisions will successfully alter human conduct is visionary in the extreme and will ultimately do more harm than good. One might as well enact a statute that requires people to "do unto others as they would be done by others" or a statute requiring all citizens "to love thy neighbour as thyself." Such moral provisions, desirable as they are, must come about by social and cultural development which affect the inner conscience of human beings. They cannot be imposed by statute.

The position taken against Murray is a perfect example. Murray is maligned and declared to be anti-human rights because he and his party voted in the legislature against a proposition that would see the government recognize and give official status to a concept entitled "sexual orientation."

I would have voted the same way. Many people believe that there are only two categories of sex that should be legislatively recognized, namely male and female. To suggest that there should be a category that is based on how humans realize sexual gratification, entitled sexual orientation, is to suggest the impossible. There are innumerable forms of sexual activity and it is not for the state to attempt a categorization which it deems to be worthy of including a specially recognized status.

Because Stuart Murray and others voted against giving such legal status he is labelled by Daniel Voth as being "homophobic." The definition of homophobia includes "unreasoning fear of or antipathy towards homosexuals." Or alternatively, "fear of or contempt for gay men and lesbians."

According to Voth, anyone who is opposed to recognizing gays and lesbians as legally established categories of human sexuality thereby demonstrates a fear or contempt for such people. Voth accordingly does not recognize the possibility that there are people who have no antipathy or contempt for gay people and yet do not wish to confer on them particular legislative status.

This would include, of course, the much debated subject as to whether the status of marriage should be conferred on a union of two men or two woman. In this respect I, and presumably Stuart Murray, are in the good company of President Barack Obama and most other political leaders and many other citizens who take the position that they have no objection to such unions but regard them as different from the union between a man and a woman which can result in marriage.

Voth apparently regards the union of two men or two women to be the equivalent to the union between a man and a woman. I happen to disagree with him and so do others. That does not make us homophobic. Nor should it disqualify me from being appointed to a position of importance. Voth takes the opposite view.

But in doing so, Voth is ignoring the Human Rights Code. Surely the question as to whether sexual orientation should be included under human rights legislation is a political question on which one is entitled to have a political opinion. But Voth would discriminate against Murray for holding and expounding such an opinion and then voting accordingly. Given that the Human Rights Code specifically prohibits discrimination on the basis of "political belief and political association" it would appear that it is Voth, and not Murray, who runs afoul of the Human Rights Code.

I do not wish to be misunderstood. It is my opinion that the Human Rights Code should not contain provisions based on political beliefs or sexual orientation. As a matter of fact, I believe we would be better off without the code. I believe that human beings may be entitled to discriminate against one another on the basis of political opinion and will do so notwithstanding the legislation.

The first Human Rights Code was passed when I was a member of the cabinet. I did not resign from the government in protest but I did register misgivings and made my position quite clear. I indicated that if I was an employer I would not hire an applicant for employment who I knew to be a Nazi. I also indicated I would not invent an excuse for my action. I would frankly admit that I did not hire the applicant because I knew him to be a Nazi. If that were contrary to the legislation I would let the chips fall where they may. It is Voth who champions the legislation. To follow his advice would be a blatant breach of the Human Rights Code.

In contradiction of itself, the code authorizes and sanctions discrimination in what is euphemistically called "affirmative action." The affirmative action philosophy is based on the premise that if there is a group in society that does not have positions in the employment and professional fields in proportion to its percentage in the general population, this is evidence of past discrimination. The code says it should be rectified by giving such persons a preference over more qualified candidates as a redress for past injustice. In fact, the affirmative action program specifically endorsed in the Human Rights Code is a back-handed way of logically facilitating discrimination based on race. Hitler used the same logic to justify his anti-Jewish campaign, as did Nikita Khrushchev in the Soviet Union.

At the commencement of this piece I indicated that we are travelling in the direction of the absurd. Daniel Voth has provided succinct support for this thesis.

Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.

Republished from the Winnipeg Free Press print edition September 23, 2009 A14