Complaining about being the Beneficiary of Discrimination

By Sherry Colb

In my column for this week, I discuss the case of a heterosexual couple in the U.K. that is planning to sue for the right to enter into a civil partnership instead of a marriage.  The couple's claim is that the U.K. rule -- that only opposite-sex couples may marry and only same-sex couples may become civil partners -- violates its right to equality (as a straight couple).  The column takes up the question of whether such a claim is plausible, given that civil partnerships are quite plainly offered as a consolation prize for gay people rather than a true benefit denied straight people.  I examine the race and sex discrimination contexts for guidance on responding to this question.

In this post, I want to highlight two areas (not addressed in the column) in which a member of a privileged group might feel legitimately aggrieved by being compelled to occupy a putatively privileged status:  the man who wants to be a stay-at-home dad, and the man or woman who wants to have access to physician assistance in dying.

Take first the aspiring stay-at-home dad.  Men do have the legal option to leave their paid employment when they have small children, while their wives continue to earn money to support the family.  Indeed, some men choose to avail themselves of this option.  Nonetheless, they regularly confront confusion, suspicion, or even hostility when they respond to the question "What do you do?" by saying that they take care of their kids.  Some apparently view such a statement as an admission of failure as a man or as a bizarre choice that must reflect either self-esteem problems or a disordered marriage.  Women, on the other hand -- even those in high-powered professions -- can exit the work force without triggering such suspicion.  Indeed, some may even applaud their decision to provide one-on-one parenting rather than delegating to a nanny or other third-party care-giver.

At least part of this distinct treatment may come from the view that the public workplace is a superior zone that men should be glad to occupy, a position of power of the household that situates its other members as his subordinates, subject to his care and direction.  Why would a man willingly give up this position if there were not something wrong with him?, some might wonder.

The man's response might well be this:  I enjoy nurturing my chidren.  I am good at it, and it makes me and my children happy.  I object to the sex-role differentiation that leads people to question my choice as gender-inappropriate behavior, even though their question might come from the perception that I am entitled to "more" than what I have chosen as my occupation.  In this scheme, sex-role differentiation is destructive not only to the women, who continue to suffer subordination in the workplace, but to the men, who may view traditionally female nurturing work as desirable and well-suited to their skills and preferences.

Now consider the second example, a man or woman who is suffering from an incurable illness and wants to have the assistance of a physician in ending his or her life.  Such a person, at the present time, is out of luck if he or she lives in the United States (outside of Oregon, where physician assistance in dying is permitted).  A doctor, who is capable of ending a suffering person's life in a painless way, risks criminal conviction and incarceration if he or she helps a patient who seeks such assistance.

By contrast, a nonhuman animal who lives with a loving family can be brought to the veterinarian and euthanized if he or she is suffering from an incurable illness and is in a great deal of pain and distress.  (Sadly, a nonhuman animal who is healthy and happy may also be "euthanized" if his or her family grows tired of his or her company and opts for a lethal injection).  The reason for the distinction is not a greater concern for the suffering of nonhuman animals than for the suffering of humans; one need only consider the many billions of animals slaughtered for human consumption in what may not plausibly be called compassionate circumstances to see immediately that we do not value nonhuman animals more than we do humans.  The reason is precisely the opposite: that we permit people to kill animals for all sorts of reasons, because we consider nonhuman lives to be expendable.  It is because human life "matters" to people, in other words, that our laws prohibit physician assistance in dying.

Yet for the human who wants to die and who cannot bear another day of suffering entailed in living, this elevated human status is no favor at all.  For such a person, the recognition that some things matter more than life itself -- a recognition that we only too willingly extend to nonhuman animals, even when the things that matter more are tasty treats for humans rather than serious needs -- would be most welcome.  A person who wishes to die, in other words, does not feel comforted by the assurance that the reason he cannot is that his life is so worthwhile.  In constant pain, he wants the right to decide for himself (or to have a loved one decide for him, if he is unable to communicate) that death is sometimes more desirable than the alternative.  For him, then, equality with nonhuman animals would allow him the right to ease out of this world painlessly, a right denied him because he is human and denied the billions of animals slaughtered for consumption, because they are not.