Liberalism and discrimination

The Peel is a Melbourne gay bar that, according to its owner Tom McFeely, isn’t gay enough. He applied for an exemption to the Victorian Equal Opportunity Act, legislation that would otherwise forbid him from keeping out women and straight men. And yesterday in the Victorian Civil and Administrative Appeals Tribunal he was granted that exemption.

According to The Age, the decision was not met with universal support:

WHEN Collingwood hotelier Tom McFeely decided to fight for the right to refuse entry to heterosexuals, he braced himself for a backlash. And a barrage of angry talkback callers proved him right yesterday.

But should McFeely even have had to apply for such an exemption? Anti-discrimination law is an issue that has divided liberals. There is a version of liberalism which holds that the way the state should treat its citizens – as impartially as possible – is a model for all institutions in civil society as well. Liberal states create space for people to live according to their own assessment of what makes for a good life, whether or not other people approve of it. But in a liberal society, the state may be the most powerful single institution, but private power has a large impact as well. To create space for the liberal individual, private as well as public power needs to be regulated. In alliance with egalitarian philosophies, this liberal idea helps explain why we have legislation prohibiting discrimination based on a wide variety of attributes.

Another version of liberalism holds that anti-discrimination law undermines freedom of association, the right to choose who we associate with and on what terms. Chandran Kukathas, in his book The Liberal Archipelago, argues that liberal states should tolerate quite illiberal communities in their midst, with practices including discrimination that would be unacceptable elsewhere. For some people to live their version of the good life requires institutions that support it, and for those institutions to work may mean excluding some types of people or regulating their behaviour.

The Peel’s problem seems to have been along these lines. According to the VCAT judgment:

If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to “swamp” the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely’s affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group’s enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.

From this perspective, it is good that anti-discrimination law is flexible enough to create exemptions. But what of discrimination that is against homosexuals? I had a debate with a blog reader last year who was complaining that a Catholic institution he was associated had declined to invite someone to it because that person was gay. My view was that such discrimination was a good reason not to be associated with that institution, and perhaps a reason not to be Catholic, but both freedom of association and tolerance required us to put up with other people’s religious beliefs, however misguided they seem.

I lean towards minimalist if any anti-discrimination law. Catholics should be allowed to exclude gay men, and gay men should be able to exclude people from their pubs. The Catholics may lose parishioners as a result, and the pub lose customers – in a liberal society there are likely to be these incentives for non-discrimination – but the discriminators should make the trade-offs, not the Victorian Civil and Administrative Tribunal.

20 thoughts on “Liberalism and discrimination

  1. “I lean towards minimalist if any anti-discrimination law.” – does you mean anti-discrimination laws that apply to public institutions, not private ones?


  2. “does you mean anti-discrimination laws that apply to public institutions, not private ones?”

    In practice, state institutions are the most likely to discriminate – many government programmes are designed to advantage some group. However, there are areas in which government generally ought to be neutral when private institutions need not be, such as religion and other beliefs, sex and sexuality, ethnic background.


  3. Agree. A similar topic has been amusing us in WA.

    And looks like the venerable Weld Club may be allowed to keep its “Gentlemen only” membership. On the other hand, our Attorney-General is thought to be more powerful than the Premier, so maybe the story won’t be over ’till the fat lady sings (in the Weld Club).


  4. I’m thinking again (surely I don’t agree with you). It wouldn’t be right, would it, if a theatre said “We don’t allow Aborigines in”. It goes beyond “I don’t like their policy, so I won’t patronise them”. Everyone in the community has certain basic rights, and most of us would say that those rights include not being excluded or treated differently because of race, colour, religion etc. Maybe it is better to have a general law and let institutions seek exemptions if they have a good case.


  5. Andrew, the implication is that the VCAT is making the discrimination as the private institutions cannot. Is this correct? It’s interesting to think about the alternatives of private institutions deciding on this or the state having a role of exempting them from anti-discrimination law.

    On the practical issue of the atmospheres of public spaces catering to subgroups, it’s interesting that changes in clientale can lead to dramatic changes in the people visiting an area over a short time. For example, Oxford St in Sydney at night is demonstrably different to how it was 5-7 years ago probably due to an influx of young heterosexual people. It has also become more violent (presumably not related to the heterosexuality of the new young visitors) and there are many vacant shops (also probably not related). No doubt new kebab/pizza shops would do well if that market isn’t already saturated.


  6. “Nice post, Andrew.”
    would you say the same about Jason?

    In 1993, I was once dragged to the Peel by a couple of young ladies midweek after midnight for business purposes you might say. It was a vibrant scene and all up we would have spent over $200 before moving on. Molly Meldrum was there and he looked like he was wearing a mask of his own face. It was a fun night but you can keep it to yoursleves if you want boys, just dont refer to it as pub anymore. I dont see why the announcement needs to be made about this, it could just have been accomplished through the use of bouncers and door policy. It is just a load of reactionary free publicity.
    If business suffers will the gay percentage both in the individual and the crowd become less? Is this what is meant by “the Gay Science”?

    If a Jungian analyst tried to get past the bouncers by saying “inside every man is a woman, and inside every woman is a man” and they let him in and turned his quote into a dance track, would everyone have the right to get in?

    Here in this university town high in Slovak Tatra mountains, there are no gay bars, no backpacker hostels, no HECS, labyrinth style libraries in castles, and loads of clean mountain air. Downhill in Bratislava there may be one gay bar, but I have not seen any gay public displays. It must be a Slavic homophbia thing, because Poland, Russia and Slovakia all seem to have less toleration of gay and lesbian culture. Southern Germany and Italy are probably just as catholic but seem to have more tolerance and gay clubs. Further south in Greece many people are gay out of necessity and further north towards the Atlantic in lapsed protestant Holland/London there is even more tolerance/open prevelance.

    Note that the majority of world’s press referred to Tatchell as British and that is what the boy from Waverley calls himself. He was willing to physically tackle Robert Mugabe in some sort of display of Persil white power. It is disgusting the way the west treats Zimbabwe economically and then blames Muagbe for its problems, possibly even worse than any any issues relating to sexuality.


  7. Sacha – I don’t think VCAT is discriminating; it is just allowing The Peel to do so. I’m not sure of the gay/straight division on Oxford St, but it doesn’t have much atmosphere these days and the restaurants tend to be very ordinary.

    Russell – But how likely is ‘unjustified’ discrimination these days? Most of it is going to be institutions like The Peel or the Weld Club in which one particular group wants to maintain its homogenous nature, rather than otherwise broadly accessible institutions trying to exclude some particular group. I left open some role for anti-discrimination law because historically there have been situations in which unwarranted discrimination is so entrenched that it is the only way to break it.


  8. I could not possibly imagine the VCAT would come to the same conclusion if I wanted my ‘White Bar’ to be allowed to exclude any person of colour and any non-racist (whether homosexual or heterosexual). If I started a ‘white bar’ I’m pretty sure that my racist patrons would have non-racist interlopers who were there to ‘deride and even [be] physically violent towards’ my racist clientele. Or if I opened an arab bar and refused entry to Jews just imagine the fuss Jeremy Jones might make!

    It seems to me that it is probably more socially acceptable to allow discrimination to some groups – but not to others. I imagine it would be much easier for the VCAT to make a space for groups like homosexuals than it would be for them to make space for racists. Is this a ‘left/right’ divide sort of thing?


  9. This is a situation where two wrongs make an even greater wrong. In the first instance, Tom McFeely shouldn’t have to get permission from the government to run his business the way he wants to. In the second instance the government* shouldn’t give selective exemptions from laws it chooses to enact. That just shows it was a dumb law in the first instance.
    * Mind you, not even the government, but a bureaucratic department of government that is not accountable to an electorate – rather is ‘accountable’ to a minister or the parliament.


  10. So what is the situation with men-only clubs these days? Years ago progressive people were resigning from some ancient and exclusive Sydney clubs that were men only (or men only for full membership). I wonder what kind of exemption those clubs had from the Anti Discrim laws?


  11. Andrew, in writing “discrimination” I meant “making a choice” – I was a a bit unclear there late last night!


  12. “It seems to me that it is probably more socially acceptable to allow discrimination to some groups – but not to others.”

    I think the general argument is that white males are politically and economically the most dominant subgroup in Australia, and hence don’t deserve the special protection that some other minority groups deserve. White males and arguably white females also get protection via the democratic process (which they control), for which some people arge acts against minority groups in some circumstances. (Superficial examples abound — I can’t eat dog because white people tell me not too, for instance, but there are more serious examples too — I can’t have 6 wives, for instance, because Christian influenced man says I can’t). Hence if you happen to believe in anti-discrimination laws, there are reasons some groups might deserve it when others don’t.

    Perhaps more interesting arguments also occur when you have two minority groups that get discriminated against in the same way. In case you happen to be Asian, for instance, you won’t get all the special benefits that some other groups get, even though the level of discimination you are likely to face is going to be as high as any other commonly discrimated against group. The main reason for this appears to be that some groups of Asians are successful in Australia, and this appears to discount some forms of anti-discrimination laws versus non-successful groups. Thus, simply because you would have been more successful had you not been discriminated against is not taken into account once your subpopulation happens to get close to the level of the average population.


  13. Update on my previous statement (just to set the record straight so to speak):

    There is a gay and lesbian cajovnicka (teashop) in the town I am in Slovakia after all. It looks low key and quite druggy with UV lights and hookahs. Not letting straight people into the Peel will dampen the pink mafia’s control of the drug trade and parts of the entertainment industry. So the selectiveness wont last or be implemented fully. Ask Adam Smith.

    Perhaps the slavic people should not be blamed for homophobia as I said earlier. It is actually the speakers of Baltic languages who banned Gay Pride march altogether in Riga:

    Ironically, the catholic church and nazis who threatened the Riga march are probably responsible for just as much gay sexual activity within their own ranks as the gay community is. In London, nazi skinheads joined and protected the gay pride march (not to mention the recent German book on Hitler’s homosexuality):

    McFeely is a made up name.


  14. “I think the general argument is that white males are politically and economically the most dominant subgroup”
    There are BDSM mistresses in Collingwood who would say they are the most submissive of the subgroups.
    When it comes to life expectancy, trench warfare or prison sentences white males do not do so well when compared to females politically or economically.


  15. I’m sorry Andrew if I digress but one of Parkos’ enlightening comments about the gay scene across Euro land had me very puzzled to say the least.

    Parkos, you say:

    ” Further south in Greece many people are gay out of necessity and further north towards the Atlantic in lapsed protestant Holland/London there is even more tolerance/open prevelance.”

    Why are Greeks gay out of necessity?

    Short answer please as I don’t want to clog Andrew’s thread with more useless junk. Thanks?


  16. “I had a debate with a blog reader last year who was complaining that a Catholic institution he was associated had declined to invite someone to it because that person was gay.”


    I never asserted that this Catholic institution should not have been permitted to discriminate against the gay man in question, merely that it should not in fact have done so.

    There is an important difference between these two propositions. For example, I believe that in general people should not commit adultery, though I believe that they should be permitted to do so.

    Similarly, I believe that in general people should not make statements that are likely to offend large sections of the community, though I believe they should be permitted to make such statements.

    For a purported proponent of liberalism, I found your apparent inability to recognise this distinction in our ‘debate’ very surprising.


  17. More sort of tradition and necessity JC.
    The Hellenic colonists on the cold hillsides of Macedonia awaiting the attack of Persians, Normans, Gauls, Saxons, Romans, Macedonians etc used to keep each other warm that way. Back at home, probably only their overweight sister awaited them as they were still living with their parents (and still do) so it became a tradition. Hence Greek style to this day. Not to mention the Greek border with Bulgaria (root of the word bugger).

    In the same mountains, shepherds and farmers of other animals were and indeed are another story and on a different rights march. I saw a movie from Greece on SBS once that would make even a Kiwi blush.


  18. Greg – I should have known better than to mention you, even not by name:) I think I eventually accepted the logic of your point, while still being less offended than you at the Catholic attitude, just as a I seem less offended than other bloggers by The Peel’s preference for lesbian and hens’ night free socialising.


  19. Andrew — I think you’ve got this one right.
    Anyone with an interest in individual freedom can see that in this case the anti-discimination laws circumscribe a sort of freedom (the right of a group to decide its membership) at the same time as they extend one (the right of an individual to be free from discimination — or, in this case, to choose to enter a gay bar). In getting the balance right the real question is: what course of action will create the greatest overall freedom? To answer that I think you’ve got to have one eye on the social reality of the community in which the decision will apply.
    In the past anti-discimination laws have been very useful in extending access to disenfranchised minorities in homogenous cultures. But where they are applied to the rights of gays to chooose with whom they associate they don’t give anywhere near as much bang for your buck in terms of improving access and the downside — the limitation on the rights of gay men to congregate in a place they feel is safe and welcoming — is considerable.
    To stop the Peel from discriminating would have taken away more freedom than it created.
    BTW, I’m also instinctively agin that notion of liberealism which sees the way the State behaves as model for all institutions in society. It’s a receipe for excessive State interference and ultimately a homogenous and intolerant society. Surely the whole point is to create a sphere of human life in which the greatest possible difference can thrive, not one in which every citizen and organization is obliged to behave as a mini-me clone of the State.


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