E-Pluribus | January 5, 2024
Free speech, the left, and Hamas; DEI on life support; gender and the law down under.
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Conor Friedersdorf: How October 7 Changed America’s Free-Speech Culture
“Things will never be the same” has been a common refrain in the wake of Hamas’s October 7th attack on Israel, much as it was after 9/11. Conor Friedersdorf of The Atlantic argues that America's speech culture is one of those things, and the left’s treatment of Jews and the coming fallout is a key aspect of the change.
It is too early to know what the next phase of America's speech culture will look like. One faction wants to resolve the double standard by treating Jews as the woke left treats Black and brown people and members of the LGBTQ community—to grant them the status of an oppressed group and to police speech on their behalf. A more farsighted faction wants everyone to get equal treatment, regardless of identity, when speaking or being spoken about. This conflict is especially hard for institutions that moved away from old-school-liberal speech attitudes toward leftist identitarianism, and created diversity, equity, inclusion, and belonging bureaucracies, only to treat Jews inequitably while leaving many Jews and Palestinians alike feeling slighted and aggressed. Why conserve that?
[. . .]
A new era began after the attacks of September 11, 2001. Many Americans wanted to process the attacks out loud, inspiring the growth of the blogosphere. Americans fought about the PATRIOT Act, police treatment of anti-war and anti–Republican National Convention protesters, and the propriety of publishing cartoons that depicted the Prophet Muhammad. The First Amendment remained a bulwark. But authorities engaged in widespread spying on Muslim Americans, chilling their speech. There were proto “cancel culture” controversies, too–– targets included Ward Churchill, Bill Maher, and the Dixie Chicks.
[. . .]
A distinctly new era began around 2013, when free-speech culture as a whole began contracting, even as smartphones and social-media platforms made it possible for more people than ever to reach a mass audience. Many used new digital tools in constructive ways. Creativity flourished. Subcultures bloomed. Horrific policing abuses were documented and exposed on video as never before, a change that fueled Black Lives Matter, the most significant protest movement of the 2010s.
[. . .]
Champions of free-speech culture found themselves at odds with the ideological left as often as the right––and on the identitarian left, as on the alt-right, ideas were more and more often judged by a speaker’s identity rather than the substance of the speech. A new class of professional speech monitors arose. These assistant deans, DEI consultants, sensitivity readers, and disinformation “experts” enforced speech taboos that changed too quickly to be fully grasped. States took mutually irreconcilable approaches, with “blue” California trying to force its professors to affirm DEI ideology even as “red” Florida tried to prohibit its professors from mentioning that same ill-defined ideology.
Until recently, I thought that the free-speech fights of 2024 would be more of the same, pitting old-school liberals, the woke left, and anti-woke rectionaries against one another. But since October 7, public discourse has been unusually focused on a question upending the left-identitarian speech paradigm: where Jews fit within it.
Read the whole thing.
Charles Lipson: Code red: DEI is in the ICU
Writing for The Spectator, Charles Lipson of the University of Chicago says 2024 could be a turning point for diversity, equity and inclusion ideology. Not only is DEI simply discrimination in another form, Lipson says, but it’s increasingly clear that DEI is even detrimental to those it purports to help.
One of the most important political developments of 2023 was the growing pushback against “diversity, equity and inclusion.” Those DEI programs and the ideology that underpin them are under siege politically and legally, and they are losing. They had grown rapidly, thanks to a mixture of support, indifference and timidity. But that began to ebb last year and will continue to recede in 2024.
[. . .]
The policies used to pursue these goals are sometimes called “reverse discrimination” because they benefit groups, primarily African-Americans, who had long been subjects of pernicious discrimination, segregation, and, indeed, racial hatred.
The terminology of “reverse discrimination” is outdated and misleading. We live more than half a century after the tectonic changes of the mid-1960s, when President Lyndon Johnson and a supportive Congress passed the Voting Rights Act, the Civil Rights Act and a series of massive government programs, many of them meant to assist historically-disadvantaged groups. After that long span, the beneficiaries today are the children and grandchildren of those who were harmed by segregation and Jim Crow laws.
The losers are not just the children, grandchildren and great-grandchildren of the beneficiaries of that invidious system. They are often the descendants of people who didn’t live in America during those years. If those descendants are subject to bias today, it is not “reverse discrimination.” It is “discrimination,” plain and simple.
This unadorned description is true no matter who benefits or loses from today’s bias, whether it is based on race, religion, sex, sexual orientation, national origin or anything besides merit. Restoring this ideal of equal treatment and equal opportunity would return American to its long-cherished ideals.
Those ideals are far different from equal outcomes, misleadingly called “equity,” as mandated by some government agency. In fact, the switch from America’s traditional goal “equal treatment” to the socialist aspiration of “equity in outcomes” is an ideological sleight-of-hand.
It is true, of course, that America often fell painfully short of its highest ideals. Sometimes it abandoned them entirely, as it did in Jim Crow laws, segregation in housing, employment and public accommodations, and, worst of all, chattel slavery. But our country will not come closer to achieving our ideals or creating a “more perfect Union” by turning its mistakes on their head. It certainly won’t do that now, after several decades of pursuing major programs to remedy past injustices.
Increasingly, that’s the conclusion the public and courts have reached.
Read it all here.
Holly Lawford-Smith: How Australian Law Pushes Vulnerable Women Towards Hiring Male Carers
Must society accept each individual’s self-identification regardless of its conflict with reality? Australia is poised to answer that contentious question. At Quillette, Holly Lawford-Smith tells the story of what one Australian woman faces as her physical condition deteriorates due to MS and she begins to consider long-term disability care. Australia’s Sex Discrimination Act might mean forcing individuals to receive assistance in the most intimate personal and physical matters by a member of the opposite sex, whether they wish to or not.
Lee is a woman in her late 30s. Three years ago, she was diagnosed with multiple sclerosis (MS). She recently wrote to the Australian Sex Discrimination Commissioner, asking whether she could—under the permanent exemptions to the Sex Discrimination Act—advertise for a biologically female personal disability carer.
[. . .]
In her reply to Lee, Sex Discrimination Commissioner Anna Cody noted that, while there are permanent exemptions for sex in relation to “employment to perform domestic duties at a person’s residence” including where needed to preserve decency or privacy, these permanent exemptions do not extend to gender identity. (Note that this is not a legal determination: ultimately, the relationship between sex and gender identity in sex discrimination law will have to be tested in court).
So, what does this mean? Picture a typical 50-year-old man. This man has a male body. His bodily experiences have all been male ones: for example, he has undergone male puberty, experienced testosterone surges, and perhaps dealt with some male-specific health issues, such as testicular cancer. Because this person is visibly and obviously male, people instinctively class him with other males when they perform quick, heuristic reasoning. This is true whether his maleness is a positive factor in the given context—I am struggling to lift this heavy object, are there any men around who can help me?—or a negative one—I am walking home alone late at night, are there men walking behind me who might murder or rape me?
[. . .]
That the permanent exemption relates to sex but not to gender identity means that Lee can advertise a position for a personal disability carer who is legally female, but that category would include a biological male who has changed the sex on his birth certificate, or a biological male whose gender identity is “female” (or who sees himself as a “woman” or “transwoman”). She cannot advertise to hire a personal disability carer who is simply female full stop: that is, biologically female. If a 50-year-old man of the kind described above decides that he has always felt more like a woman, and declares a “female” gender identity, then Lee cannot legally refuse to hire him on the grounds that he is biologically male. Under the law, his gender identity determines his legal sex. This is true even if he has not changed the sex on his birth certificate. He can access the legal entitlements of biological females simply by declaring a “female” gender identity. Were Lee to refuse to hire someone for being biologically male, she could be accused of discriminating against him on the basis of his gender identity. (As a legal female, he would be considered a legitimate candidate for a female job.)
So, if Lee were to advertise for a personal disability carer and our typical 50-year-old man were the best qualified candidate, Lee would risk being accused of discrimination were she to refuse to hire him. (She might avoid this complaint if she hired no one at all, but that would mean forfeiting the assistance she so badly needs.) Could this really have been what the legislators intended when they drafted the Sex Discrimination Act?
Read it all.