To be disfigured is to have been ‘properly’ figured but then something happened, whereas to be deformed is to be born that way. This distinction may be important for other purposes, but not for what I want to discuss here.

Suppose she’s so disfigured – or deformed, it matters not which – that if she were hired as a server, the restaurant would immediately go out of business. We could argue – as we did with respect to segregated lunch counters – that customers should just get over it. But they can’t. They can’t because, as any evolutionary psychologist will tell you, revulsion to deformity is hardwired into us.

Let’s imagine that because of the restaurant’s location – a day from each end of the ice road – it’s an absolutely essential service. She’s not disabled. Her unsuitability is not about her. It’s about us. You and I are probably of a mind that if there’s a burden of compensation for her unemployability it falls on the state to provide it. But she’s not looking for a handout. She wants the job.

She’s not hired. She sues. You’re the judge. How do you rule?

I’m inclined to say her complaint is non-actionable. And that if you think otherwise, it’s because you think justice isn’t justice unless it trumps all other considerata. You can afford to think that because you can’t see yourself living at the end of an ice road. Well, to be fair, neither can I imagine myself that badly disfigured. So yes, failure of imagination can cut both ways.

Hard as it is to believe, there was a time and place, not long ago and not far away, when sharing the counter with a black man would put a good ol’ boy off his lunch. He was told to get over it, and eventually he did. It’s easier to believe – in fact hard to deny – there are women who feel unsafe, notwithstanding they’re not, forfeiting their ablutionary privacy to what still looks like a man. No doubt they’ll get over it. Or maybe not. But should they have to?

Of the face of the person serving me, and its effect on my digestion, we’re tempted to say that deformity is contra natura, whereas skin colour is cultural. And that nature is incorrigible, whereas nurturing is always subject to social revision. But that’s too quick. Homosexuality is natural. Was homophobia natural or trained into us? In either case, it’s now being trained out of us. Does it matter which is the default condition? And if so, why does it matter?

As it happens, I’m an out-of-the-closet heterosexual. Like most men, I’m sexually attracted to some women, less so to others, and not at all to most. Does a trans woman have a right to anyone’s sexual attention? Certainly not a positive right. As we all know, being rejected can be very hurtful. But it’s not actionable. Why? Because we’ve decided there’s a more fundamental right: the right to reject. Could that right be overridden? We know it’s possible. In most of the world a wife can’t say no. So if the husband’s demand is cultural, why isn’t the incel’s?

Is there a bottom line I’m trying to draw here? There is. It’s that any attempt to draw a principled distinction between what kinds of discrimination to allow and what kinds not to disallow will die the death of a thousand qualifications. These are political distinctions. As with any political decision, there are winners and losers. Every loser is entitled to a sorry-but. That’s not what she wants, but it’s something.

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Categories: Everything You Wanted to Know About What's Going On in the World But Were Afraid to Ask, Social and Political Philosophy

Tags: actionability, discrimination, justice, nature versus nurture, trans women