Tag Archives: rights

Bathroom Laws: Bathroom Rights

One way to approach the moral issue of whether transgender people should be able to choose their bathrooms is to consider the matter in utilitarian terms. This would involve weighing the harms inflicted by denying this choice against the harms inflicted by granting it. In a democracy, this approach seems to a reasonable one—at least if it is believed that a democratic state should aim at the general good of the people.

A utilitarian assessment of the bathroom choice issue leads to an obvious conclusion: bathroom choice should be granted. As I have argued in another essay, the two main arguments against bathroom choice fail in the face of due consideration and facts. One argument is that allowing bathroom choice would put people in danger. Since some states have already allowed bathroom choice, there is data about the danger presented by such choice. Currently, the evidence shows that there is no meaningful danger. As some wits enjoy pointing out, more Republican lawmakers have been arrested for bathroom misconduct than transgender people. As such, those worried about misdeeds in bathrooms should be focusing on that threat. The other argument is the privacy argument, which falls apart under analysis.

While those advancing these arguments might honestly believe in them, it might be suspected that the prime motivation for opposing bathroom choice is a dislike of transgender people—the “transgender people are icky argument.” This “argument” has no merit on the face of it, which is why it is not advanced as a reason by opponents of bathroom choice.

One stock problem with utilitarian arguments is that they can be used to justify the violation of rights. This problem typically arises in cases in which the benefits received by a numerical majority come at the expense of harms done to a numerical minority. However, it can also arise in cases where the greater benefits to a numerical minority outweigh the lesser harms to a numerical majority. In the case at hand, those opposed to bathroom choice could argue that even if bathroom choice benefits transgender people far more than it harms people who oppose bathroom choice, the rights of anti-choice people are being violated. This then makes the matter a question of competing rights.

In the case of public bathroom facilities, such as student bathrooms at schools, members of the public have the right to use them—that is the nature of public goods. There are, however, reasonable limits placed on access. For example, people are generally not allowed to just wander off the street into schools to use the facilities. Likewise, the bathrooms in courthouses and government buildings are generally not open to anyone to wander off the street and use. So, there is a right to public bathrooms—but, like all rights, it does have its limits. It can thus be assumed that transgender people have bathroom rights as do people who oppose bathroom choice. What is in dispute is whether the right of transgender people to choose their bathroom trumps the right of anti-choice people to not be forced to use bathrooms with transgender people.

Disputes over competing rights are often settled by utilitarian considerations, but the utilitarian argument already favors bathroom choice. As such, another approach is needed and a reasonable one is the consideration of which right has priority. This approach assumes that there is a hierarchy of rights and that one right can take precedent over another. Fortunately, this is intuitively appealing. For example, while people have a right to free expression, the right to not be unjustly harmed trumps it—which is why libel and slander are not protected by this right.

So, the bathroom issue comes down to this: does the right of a transgender person to choose their bathroom have priority over the right of an anti-choice person to not encounter transgender people in the bathroom? My inclination is that the right of the transgender person has priority over the anti-choice person. To support this, I will use an analogy to race.

Not so long ago, there were separate bathrooms for black and white people. When the bathrooms were to be integrated, there were dire warnings that terrible things would occur if bathrooms were integrated. Obviously enough, these terrible things did not take place. Whites could also have argued that they had a right to not be in the same bathroom as blacks. However, the alleged white right to not be in a bathroom with blacks does not seem to trump the right of blacks to use the bathroom. Likewise, the right of transgender people to choose their bathroom trumps the right of anti-choice people to exclude them.

It can be objected that if this argument is taken to its logical conclusion, then gender mixing will occur in the bathrooms. For example, one common sight at road races (such as 5Ks and marathons) are long lines leading to the women’s bathrooms and short lines (or no lines) for the men’s bathrooms. Women runners, desperate to lighten their load, might start going into the men’s room (they already sometimes do). Then terrible things might happen. Specifically, I might need to wait longer to pee before races. This is a case where my selfishness must outweigh my moral principles: though I have no moral objection to gender mixing of bathrooms, my selfish bladder says that I cannot give up my right to a shorter line. This makes me a bad person, but a bad person with a happy bladder. Yes, this is satire. Maybe.

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Ebola, Ethics & Safety

English: Color-enhanced electron micrograph of...

English: Color-enhanced electron micrograph of Ebola virus particles. Polski: Mikrofotografia elektronowa cząsteczek wirusa Ebola w fałszywych kolorach. (Photo credit: Wikipedia)

Kaci Hickox, a nurse from my home state of Maine, returned to the United States after serving as a health care worker in the Ebola outbreak. Rather than being greeted as a hero, she was confined to an unheated tent with a box for a toilet and no shower. She did not have any symptoms and tested negative for Ebola. After threatening a lawsuit, she was released and allowed to return to Maine. After arriving home, she refused to be quarantined again. She did, however, state that she would be following the CDC protocols. Her situation puts a face on a general moral concern, namely the ethics of balancing rights with safety.

While past outbreaks of Ebola in Africa were met largely with indifference from the West (aside from those who went to render aid, of course), the current outbreak has infected the United States with a severe case of fear. Some folks in the media have fanned the flames of this fear knowing that it will attract viewers. Politicians have also contributed to the fear. Some have worked hard to make Ebola into a political game piece that will allow them to bash their opponents and score points by appeasing fears they have helped create. Because of this fear, most Americans have claimed they support a travel ban in regards to Ebola infected countries and some states have started imposing mandatory quarantines. While it is to be expected that politicians will often pander to the fears of the public, the ethics of the matter should be considered rationally.

While Ebola is scary, the basic “formula” for sorting out the matter is rather simple. It is an approach that I use for all situations in which rights (or liberties) are in conflict with safety. The basic idea is this. The first step is sorting out the level of risk. This includes determining the probability that the harm will occur as well as the severity of the harm (both in quantity and quality). In the case of Ebola, the probability that someone will get it in the United States is extremely low. As the actual experts have pointed out, infection requires direct contact with bodily fluids while a person is infectious. Even then, the infection rate seems relatively low, at least in the United States. In terms of the harm, Ebola can be fatal. However, timely treatment in a well-equipped facility has been shown to be very effective. In terms of the things that are likely to harm or kill an American in the United States, Ebola is near the bottom of the list. As such, a rational assessment of the threat is that it is a small one in the United States.

The second step is determining key facts about the proposals to create safety. One obvious concern is the effectiveness of the proposed method. As an example, the 21-day mandatory quarantine would be effective at containing Ebola. If someone shows no symptoms during that time, then she is almost certainly Ebola free and can be released. If a person shows symptoms, then she can be treated immediately. An alternative, namely tracking and monitoring people rather than locking them up would also be fairly effective—it has worked so far. However, there are the worries that this method could fail—bureaucratic failures might happen or people might refuse to cooperate. A second concern is the cost of the method in terms of both practical costs and other consequences. In the case of the 21-day quarantine, there are the obvious economic and psychological costs to the person being quarantined. After all, most people will not be able to work from quarantine and the person will be isolated from others. There is also the cost of the quarantine itself. In terms of other consequences, it has been argued that imposing this quarantine will discourage volunteers from going to help out and this will be worse for the United States. This is because it is best for the rest of the world if Ebola is stopped in Africa and this will require volunteers from around the world. In the case of the tracking and monitoring approach, there would be a cost—but far less than a mandatory quarantine.

From a practical standpoint, assessing a proposed method of safety is a utilitarian calculation: does the risk warrant the cost of the method? To use some non-Ebola examples, every aircraft could be made as safe as Air-Force One, every car could be made as safe as a NASCAR vehicle, and all guns could be taken away to prevent gun accidents and homicides. However, we have decided that the cost of such safety would be too high and hence we are willing to allow some number of people to die. In the case of Ebola, the calculation is a question of considering the risk presented against the effectiveness and cost of the proposed method. Since I am not a medical expert, I am reluctant to make a definite claim. However, the medical experts do seem to hold that the quarantine approach is not warranted in the case of people who lack symptoms and test negative.

The third concern is the moral concern. Sorting out the moral aspect involves weighing the practical concerns (risk, effectiveness and cost) against the right (or liberty) in question. Some also include the legal aspects of the matter here as well, although law and morality are distinct (except, obviously, for those who are legalists and regard the law as determining morality). Since I am not a lawyer, I will leave the legal aspects to experts in that area and focus on the ethics of the matter.

When working through the moral aspect of the matter, the challenge is determining whether or not the practical concerns morally justify restricting or even eliminating rights (or liberties) in the name of safety. This should, obviously enough, be based on consistent principles in regards to balancing safety and rights. Unfortunately, people tend to be wildly inconsistent in this matter. In the case of Ebola, some people have expressed the “better safe than sorry” view and have elected to impose or support mandatory quarantines at the expense of the rights and liberties of those being quarantined. In the case of gun rights, these are often taken as trumping concerns about safety. The same holds true of the “right” or liberty to operate automobiles: tens of thousands of people die each year on the roads, yet any proposal to deny people this right would be rejected. In general, people assess these matters based on feelings, prejudices, biases, ideology and other non-rational factors—this explains the lack of consistency. So, people are wiling to impose on basic rights for little or no gain to safety, while also being content to refuse even modest infringements in matters that result in great harm. However, there are also legitimate grounds for differences: people can, after due consideration, assess the weight of rights against safety very differently.

Turning back to Ebola, the main moral question is whether or not the safety gained by imposing the quarantine (or travel ban) would justify denying people their rights. In the case of someone who is infectious, the answer would seem to be “yes.” After all, the harm done to the person (being quarantined) is greatly exceeded by the harm that would be inflicted on others by his putting them at risk of infection. In the case of people who are showing no symptoms, who test negative and who are relatively low risk (no known specific exposure to infection), then a mandatory quarantine would not be justified. Naturally, some would argue that “it is better to be safe than sorry” and hence the mandatory quarantine should be imposed. However, if it was justified in the case of Ebola, it would also be justified in other cases in which imposing on rights has even a slight chance of preventing harm. This would seem to justify taking away private vehicles and guns: these kill more people than Ebola. It might also justify imposing mandatory diets and exercise on people to protect them from harm. After all, poor health habits are major causes of health issues and premature deaths. To be consistent, if imposing a mandatory quarantine is warranted on the grounds that rights can be set aside even when the risk is incredibly slight, then this same principle must be applied across the board. This seems rather unreasonable and hence the mandatory quarantine of people who are not infectious is also unreasonable and not morally acceptable.


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A Six-Gun for Socrates in Print


This short book presents a series of philosophical essays written in response to gun violence in the United States. While the matters of guns, violence and rights are often met with emotional responses, my approach has been to consider these matters from a philosophical standpoint. This does not involve looking at them without emotion. Rather, it involves considering them in a rational way and this requires considering how our emotions affect our views of these vital matters.

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Detail of a sprinkler.

Image via Wikipedia

The matter of house sprinklers might not appear worthy of philosophical discussion, but appearances can be deceiving. Interestingly enough, there is considerable debate over sprinklers and this debate has philosophical significance.

One key debate regarding sprinklers is whether or not people should be required by law to have sprinklers in their houses.

One argument that is both practical and moral in character is the cost argument. The average cost for sprinklers in a new 2,000 square foot two story house (with a basement) is $4,000. If the house in question is not connected to the municipal water supply, the cost can increase by $3,000 or more.

The practical argument is, obviously enough, that this increased cost would make it harder for people to afford houses and this would have a negative impact on potential homeowners, builders, sellers and others associated with the housing industry. Given that the economy is currently in rough shape, it would seem unwise to require sprinklers.

The moral aspect of the argument is consequentialist in character: the harms imposed by forcing people to have sprinklers outweighs the benefits of doing so. If it is assumed (or argued) that what generates more harm than good is wrong, then it would be wrong to compel people to have sprinklers.

One reply to this argument is that the safety provided by the sprinklers would offset the cost. A second reply is that making and installing sprinkler systems would create jobs. Of course, the key question would be whether or or not the benefits of the sprinklers would outweigh the negative aspects. On the face of it, the safety advantages would seem to rather significant. After all, sprinklers can keep people from being burned to death.

A second argument is a rights based argument. The idea is that the state has no right to compel people to install sprinklers. This falls under the general subject of whether or not the state has a right to compel people to take positive steps in regards to safety.

While it is generally accepted that the state can rightfully compel people to prevent them from inflicting harm on others (outlawing murder, for example), there is far more disagreement in regards to the state having the right to compel people to protect themselves from harm.

One basis for this distinction is as follows. Harming others can be seen as infringing on their rights and it would be odd for a person to claim that he has a right to violate the rights of others. As such, the state would seem to be in the right to compel people in such cases. In the case of forcing people to protect themselves, this does does seem to involve protecting people from the harm of others and would seem to fall under the realm of choice rather than compulsion. As such, forcing people to pay for such safety would seem to violate their rights.  If an argument is wanting, it is easy enough to appeal to Mill’s classic arguments on the matter.

One obvious reply is that the homeowner’s choice does not just impact him (or her). For example, it would also have an impact on any children or neighbors who live close enough for the fire to spread. However, these factors could be dismissed as being less important than the right of the homeowner to decide what degree of safety she (or he) finds acceptable.

Naturally, if this sort of reasoning is acceptable, it would seem that people would thus have the right to make a broader range of safety choices. For example, they could presumable decide that they are willing to do without the added cost of such things as proper wiring, firewalls (the physical kind), and adequate structural strength in the house. This should also extend to other matters as well, such as automobile safety features, food safety and so on. Naturally, companies should not be allowed to pass off dangerous things to people, but it would seem to follow that people should be able to voluntarily and knowingly do without safety features if they chose to do so.

I do find this line of reasoning rather appealing-after all, Mill’s arguments for liberty are rather compelling and the idea of being an adult seems to involve the right to make poor choices when they primarily impact only oneself.

That said, it can also be argued that an individual does need to be protected from himself (being treated as both the actor and the acted upon) and such poor choices regarding safety could be taken as evidence of mental incompetence, thus warranting compulsion.

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Strip Searches & Students

In 2003 8th grade student Savana Redding was strip searched by school officials. Her case has made it to the Supreme Court.

The strip search was the result of another student claiming that Redding, an honor student who had no history of disciplinary action, was distributing prescription strength ibuprofen. Redding denied having the drug and the strip search failed to turn up any drugs. It did, however, humiliate the young woman.

On the face of it, strip searching Ms. Redding seems to be a clear violation of her rights and a wrongful action. After all, the word of a student caught with drugs can hardly be considered adequate evidence on which to justify such a search. Further, it seems rather inappropriate for school officials to have the authority to conduct strip searches at all. While school personal do act in disciplinary capacities, strip searching seems to be an activity that should require actual police authority.

Naturally, Ms. Redding’s case is a specific matter but it does raise questions about student rights and the limits of the authority of school officials. Traditionally the courts have given school officials significant leeway. Students have long been subject to restrictions and treated in ways that would not be tolerated outside of the school setting.

Not surprisingly, the school district position is that holding school officials to the legal standard of “probable cause” for such searches would create a “roadblock to the kind of swift and effective response that is too often needed to protect the very safety of students, particularly from the threats posed by drugs and weapons.”

On one hand, this does have some appeal. After all, children are not adults and this can (and has) been used to justify a difference between the rights possessed by children and those enjoyed by adults. Further, the school setting is also a different setting than the outside world and this often requires a difference in such matters. For example, consider the matter of hall passes. Outside of school, 18 year old students are free to go about as adults. Inside school, their movements are restricted by a system of permissions and passes. This is considered an acceptable practice because of the need to restrict student movement within school hours. Like wise, the school setting would justify violating the normal rules governing searches.

On the other hand, this sort of justification can be seen as defective. First, if it is a reasonable principle, then it would justify doing away with probable cause requirements across the board. After all, a case can almost always be made that a search was needed to protect someone from something. However, the requirements for probable cause are in place for excellent reasons. Hence, this principle seems to be unacceptable. Second, while the school setting can be seen as justifying differences in certain matters, the setting does not seem to justify such an extreme violation of a basic principle of law. Obviously schools do need to maintain a safe and orderly environment. But, this should not be taken to justify such things as strip searches. Rights do not simply end at the school door and the proper rule of law must apply even within the walls of schools.