So, a woman walks into a Muslim-owned barbershop and asks for a men’s haircut…
It sounds like the beginning of a joke, but it’s actually the beginning of a farce. The woman was Faith McGregor, the shop was a Toronto establishment called the Terminal Barber Shop (which sounds like it ought to be run by Sweeney Todd), and the pious male barbers refused their services on the grounds that it was haram for them to apply their finely-honed skills to the hair of a woman to whom they were not related. McGregor, naturally, filed a complaint with the Ontario Human Rights Commission.
McGregor failed to receive her haircut back in June, and the whole scandalous situation surfaced in the news weeks ago, but I mention it now because of a couple of interesting articles on the subject that recently appeared in the National Post. First up is Sarah Boesveld, who has a thoughtful piece on the way the case of McGregor’s unshorn locks highlights a basic problem in rights-based jurisprudence: the fact that rights sometimes conflict with each other.
When then-Quebec premier Jean Charest argued in 2007 that when women’s rights conflict with other rights, women’s rights should prevail, he highlighted the fact that there are necessarily choices to be made when it comes to balancing human rights in a Canada that is more diverse than ever —welcoming more new immigrants, feeling the social effects of same-sex marriage, and seeing women’s continued ascent in the workplace. Inevitably that results in drawing lines between which rights Canadians consider to be legitimate rights, and therefore, inviolable, and things we have come to call “rights,” but may be something less.
Boesveld quotes a commendably wide range of opinions on the nature of such conflicts and how they should be handled, but the bottom line is that there are no completely straightforward answers. How are “legitimate rights” supposed to be distinguished, in practice, from the ones that are “something less”? George Jonas, author of that second article in the Post, seems convinced that he can tell the difference. In his view, Canada’s human rights commissions are in the business of promoting things that are not real human rights but mere “human ambitions”, in McGregor’s case “some matriarchal quest to empower women to have their hair cut by men of their choice, whether they like it or not”. (I doubt McGregor really thinks she should be allowed to force absolutely any man she might encounter to give her a haircut on request, as Jonas’ way of putting it would seem to imply.)
Jonas doesn’t actually provide any criteria for distinguishing rights from ambitions, and I would argue that the task is an impossible one because rights are just ambitions, or aspirations, that some kind of legislative authority has decided to endorse. Faith McGregor presumably aspires to live in a society where she is not denied access to services on the basis of her sex, and the gentlemen of the Terminal Barber Shop presumably aspire to live in a society where they can run their business while still observing the tenets of their religion. Saying that she has a right to freedom from discrimination, or that they have a right to freedom of religion, merely describes a particular approach to providing these aspirations with legal support.
Seen in this light, the language of rights loses a bit of the lustre it seems to have acquired in modern Canada and becomes just another way of talking about the rules of society. Good skeptics should give it no more weight than it deserves, and should acknowledge that rights – all rights – can in principle be narrowed and expanded, redefined and reformulated, and balanced both against each other and against other important considerations such as the national interest and the common good. Attempts to shield a core of “legitimate rights” from this process will be vulnerable to cries of arbitrariness, and will break down in any case whenever two of the hallowed legitimate rights happen to come into conflict with each other.
Make no mistake: in this battle of Faith against faith, my sympathies are on the side of Faith. I think the Terminal Barbers ought to forget about the damn Koran and cut McGregor’s damn hair, assuming she still wants them to. If they experience a certain lascivious pleasure while doing so, which I suppose must be the horrific possibility that Islam’s strict rules about contact between the sexes are meant to forestall, they might as well shrug and enjoy it. Nevertheless, not all battles are worth fighting, and it’s hard to avoid a certain sense that the struggles of the ancient and honourable clan of the McGregors have declined in seriousness since the days when Rob Roy took up arms against the Duke of Montrose. Perhaps human rights commissions do something useful now and then, but they do seem to attract petty complaints like a blooming (in both bloody senses) Rafflesia attracts flies. George Jonas sees them as vampiric entities deserving of a “stake through the heart”, and I don’t entirely disagree.