The concept of discrimination in the public perception is unequivocally perceived negatively. However, the problem seems to be the formulation of its definition, which could be applied with more nuance in specific cases.
Certainly, it is not in itself the establishment of criteria for admission to certain activities or statuses. It is difficult to see as discrimination the fact that prestigious universities will not accept students with poor or average academic results. Going further, however, one might ask whether, if the admissions criteria were based only on academic performance, but the majority of rejected candidates were women or minorities, could this be considered discrimination? On the contrary, if certain privileges were granted to these groups because of their other characteristics, would this constitute discrimination against those with higher scores who did not get into the university? It seems important to distinguish between legitimate differentiation and arbitrariness – for example, rejecting all candidates whose surnames begin with the letter “z” could be considered an arbitrary decision.
The point of controversy in current debates on equal treatment is becoming not only words, but above all their interpretation. The factors on the basis of which “in particular” it is forbidden to discriminate usually include gender, religion, sexual orientation and – increasingly – so-called “gender identity”. In my view, it should be noted that, as a general rule, equal treatment should be claimed in those situations where identical circumstances can be said to exist. For example, it is not claimed that a 14-year-old is discriminated against because he cannot get married even if he would like to, or if a holder of only Polish citizenship is not entitled to vote in elections for the President of the United States.
Zeid Raad Al Hussein, the United Nations High Commissioner for Human Rights from 2014 to 2018, in his report suggests countering discrimination through legal recognition of same-sex unions, noting, however, that “under international law, states are not obliged to recognize same-sex marriages.” Another UN entity, the UN for LGBT Equality, recommends the adoption of anti-discrimination laws prohibiting discrimination on the basis of sexual orientation and gender identity in employment, education, health care and identification.
The issue of “identification” is also rather mysterious. In relation to the prohibition of discrimination based on gender identity, a U.S. court battle (eventually won) in Franciscan Alliance v. Azar was fought by doctors at a Franciscan hospital who refused to perform a sex reassignment procedure. According to the original interpretation of the law, they could not refuse it even in the case of children or people in whom – according to their knowledge – it would be highly harmful.
The understanding of gender discrimination also varies. While legitimate demands for equal pay for equal work or economic recognition of work done in the home are generally considered valid by Christian denominations, a problem arises in the case of the reproductive rights understood as rights including an access to abortion and free contraception. The UN Human Rights Committee, referring to the case of Mellet v. Ireland, considered that the refusal of abortion was an example of discrimination on the basis of sex, because termination of pregnancy is always refused to a woman, not a man.
We are all equal in dignity and should respect one another. Anti-discrimination legislation in general is not a bad idea, but we must be careful with its understanding, if we don’t want to lose our freedoms – particularly, the freedom to respectfully disagree. [i]
[i] This text is partly taken from my master thesis about the relation between freedom of conscience and “new human rights” (thesis in progress).