Aaron Rhodes in Zeit Online – read the original piece here (in German)
When the State Imposes Top-down Inequality
By Aaron Rhodes
As a human rights advocate, I regard any law that intentionally mandates sex discrimination as profoundly wrong as a matter of principle, and deeply distasteful. The principle of equality before the law, and equal recognition and protection of rights, regardless of gender, ethnicity, religion, age or any other difference is one that animates almost every human right. Protecting the freedom of individuals to make choices without arbitrary coercion is the main goal of the liberal state. To privilege one group at the expense of another is contrary to the Rule of Law. Legal discrimination against men is surely not the answer to stubborn gender discrimination in the workplace, a complex problem that reduces opportunities for women.
But these principles seem not to have guided the long political debate that has resulted in an agreement to force some German business firms to appoint women to 30% of corporate supervisory boards, a law due to be passed on 11 December.
The disappointing debate and its outcome only illustrate how far society has strayed from respect for the core human rights. Both proponents and critics of the legislation have mainly relied on utilitarian arguments that reduce sacrosanct human rights to goals that can be ignored if they conflict with other priorities.
Racial, religious and gender quotas have always been defended as “good for society.” Future generations might have less benign reasons for violating human rights than gender diversity on corporate boards. When we disrespect equality and freedom by balancing them against other concerns, we weaken human rights as a bulwark against tyranny.
Manuela Schwesig, Federal Minister of Family Affairs, said the new law ”is an important step to equal rights because it will introduce a culture shift in the work force.” Germans, as much as members of any society, have every reason to greet proposals for state-driven cultural change with skepticism. Equality is expected to “trickle down” from leadership circles into the corporate ranks. With implementation of the new law, what will trickle down is divisive friction between the sexes. And what about representation by Germany’s gays, Turks, and other groups? Such laws lead to a divisive identity politics.
Defenders of the law have attributed opposition to sexual chauvinism, and political friction over the measure has been termed “unacceptable” by women’s representatives of the German Green Party.
Opponents of gender quotas claim they patronize and infantilize women, affirming that women need the strong arm of the state to guarantee their career advancement, and that such quotas actually undermine respect for women’s achievements by holding them to different standards. Many successful women and members of minorities have found that quotas devalue their efforts.
Business groups say the quota will harm efficiency and that voluntary efforts to improve female representation on corporate boards will eventually bring the desired results.
In a general sense, the deeply flawed concept of a quota that discriminates against half the population and forces private institutions to obey a highly dubious social engineering scheme reflect an embrace of “legal relativism,” which allows principles to be interpreted in any way necessary in order to achieve political objectives.
The twisted concept of “affirmative discrimination,” a prime example, has been around for decades, and discredited by experience, logic and morality, not to mention its dubious record as a technique of social transformation.
Still, the failure of quotas is not the most important argument against them; quotas would also be wrong if they achieved their social goals, because they would have done so at the expense of the principle of equality before the law by placing some at a disadvantage.
Yet the failure to reject the quota proposal as contrary to human rights is fully understandable given the gradual weakening of the human rights discourse over several decades of erosion. Quotas have been legitimated by international human rights treaties like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has been ratified by virtually every country on earth except the United States and several Islamic theocracies. The Convention on the Elimination of All Forms of Racial Discrimination (CERD), holds that quotas may be required to address discrimination in signatory states. The UN Human Rights Committee has also endorsed quotas. Article 23 of the European Charter of Human Rights explicitly permits such measures: “The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”
Diversity in leadership roles and throughout the workplace carries many benefits for individuals and for society. Rather than assign responsibility for achieving diversity to restrictive and burdensome laws imposed by the state, civil society needs to do more. Parents, communities, religious organizations, schools and universities need to encourage women and minorities to have ambitions, to achieve, and to push to succeed. Not only business enterprises, but all professions need to make prejudice based on gender, race, and other such criteria a taboo. Diversity based on the values of civil society is stronger than that resulting from rigid laws.
The basic freedoms of Europeans, in particular the freedoms of expression and religion, are now often violated in the course of promoting “tolerance” and social peace, and the European Court of Human Rights has routinely failed to defend them. What is happening in Germany thus reflects a more general process, one promoted by the human rights community, which has pushed international law faster down this slippery slope. Germans will have more women on corporate boards, but they will live in a society where the heavy hand of the state increasingly dictates outcomes rather than protecting freedoms.