The decline and fall of freedom of association

Participants of Adelaide’s Feast drag festival in 2019. Picture: Tricia Watkinson
Participants of Adelaide’s Feast drag festival in 2019. Picture: Tricia Watkinson

There were, Edward Gibbon explained in his Decline and Fall of the Roman Empire, many reasons to fear that Byzantium, despite the splendours of its artistic achievements, would come to a sticky end. But few signs more tellingly presaged that great empire’s collapse than the attention its elites devoted, just as the Otto­mans laid the groundwork for their final assault, to the vexed issue of the sex of angels.

Now, in the midst of the Covid crisis, Tasmania’s anti-discrimination commission has trained its sights on the contemporary version of the controversy that gripped Byzantium: whether an organisation of lesbian “people without penises” (previously known as women) should be allowed to exclude “people with penises” (once termed men) from its “drag king bingo, drag king karaoke, and drag kings” nights, along with other events.

Predictably, the application by the “penisless” outraged those of the Apple Isle’s “penised” who assert that they are women and complain of being “discriminated” against merely because they have chosen to hang on to what used to be regarded, apparently incorrectly, as the male sexual organ.

And equally predictably, the commissioner’s decision to refuse the application has unleashed protests from the penisless, who claim their events are “about same-sex attraction” — and that while they may be “forced to have them in our groups, none of us want to date them”, since the intruders “are not female; they are biological males”.

With tempers running hot, the dispute is set to become a national test case, mobilising phalanxes of lawyers whose talents will be tested as they struggle to fit this gallimaufry of categories and contentions into the framework of Tasmania’s anti-discrimination law.

But regardless of what the courts ultimately find, it is hard not to wonder why it is a legal question at all. After all, the freedom of association – the right to choose who one does or does not enter into relationships with by consent, contract or acquiescence – has long been considered a foundation of liberty, which should be abridged only to protect the public from grave harm.

Participants of the 2020 Sydney gay and Lesbian Mardi Gras. Picture: Nikki Short
Participants of the 2020 Sydney gay and Lesbian Mardi Gras. Picture: Nikki Short
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As early as the 1820s, Hegel, looking forward to an era freer than his own, identified associative activity as the indispensable buffer between individuals and the state, a sphere of private initiative that could constrain the tendency of governments to become ever more intrusive.

And writing only a few years later, Tocqueville, who had experienced the burgeoning associative life of the early American republic, added to the virtues of voluntary associations their role as “schools of democracy”, educating successive generations in the habits of self-government.

It is true that the organisation of “drag king karaoke” evenings is unlikely to have been on Hegel’s mind when he extolled voluntary associations, in his Elements of the Philosophy of Right, as the place in which “individual preferences are liberated, and the waves of all passions surge forth governed only by the reason which still shines through them”.

But he did intuit that just as the diversity of individual preferences was at the heart of modern society, so such a society would spawn an enormous variety of voluntary associations – some meritorious, others less so. And it was the freedom of individuals to congregate on the basis of their affinities that would give what he termed civil society its ongoing dynamism.

Drawing out the implications of that analysis in a 1959 essay that expressed her deep disquiet about the potential reach of anti-discrimination legislation, Hannah Arendt pithily explained Hegel’s enduring insight: “What equality is to the body politic – its innermost principle,” she wrote, “discrimination is to civil society.” For when we exercise our rights, we choose, and when we choose, we discriminate – whether it is in selecting our mates, our friends, our pastimes or our creeds.

As a result, “without the discrimination (which allows) the old adage of ‘like attracts like’ to control the innumerable variety of associations”, civil society “would simply cease to exist”. The right to determine the company one keeps should therefore be considered “as indispensable a social right as equality is a political right”, buttressing the formation of durable affinity groups and preventing society’s collapse into formlessness.

Tasmanian Anti-Discrimination commissioner Sarah Bolt has ruled lesbian events that exclude trans-women carry a “significant risk” of breaching legislation.
Tasmanian Anti-Discrimination commissioner Sarah Bolt has ruled lesbian events that exclude trans-women carry a “significant risk” of breaching legislation.

Of course, it may be that voluntary associations, were they permitted to do so, would indulge in forms of discrimination so odious that they ought to be prohibited, though that proposition seems unconvincing in today’s Australia. And it may also be that our institutions could prevent the most egregious instances of those forms of discrimination at tolerable social cost. But something has gone badly wrong when the coercive powers of the state are used to determine who must be admitted to a lesbian dating club.

The lack of clarity around the resulting rights and obligations only compounds the concerns. In effect, once the “penised” have been granted the right to gatecrash the party, what precisely does the law demand? Must the penisless be nice to their new “penised” chums? Are they required to offer them a fair share of the ringside seats? What about an equal opportunity to “score”?

Were there a Platonic ideal of participation in such groups – the “pure idea” of the lesbian dating club, or its dialectical sublation – those puzzles might be readily resolved. However, in its unfortunate absence, it is not a slippery slope that the commission has embarked upon: it is a headlong plunge into the abyss of micromanagement, sacrificing what remains of freedom of association along the way.

Former Austrian psychoanalyst Sigmund Freud in 1931.
Former Austrian psychoanalyst Sigmund Freud in 1931.

There is nonetheless more than a hint of irony in all this. It was the radical feminists, with their slogan that “the personal is political”, who brought every aspect of intimate association into the political battle, subjecting it to political definition, direction, and manipulation. And it was also the radical feminists who championed the untethering of gender from sexuality, opening the door for an alphabet soup of genders, real or imagined, all clamouring to be officially recognised (or “validated” in today’s tedious therapeutic lexicon) as victims in a politicised ontology of being.

Now they have turned on each other, giving full vent to what Sigmund Freud termed “the narcissism of minor differences”: the inclination of groups whose identities are overlapping, fluid and insecure to engage in feuds of unparalleled viciousness. Where those feuds will take us is hard to say. This much, however, is certain: a society in which each and every organisation is forced to be equally diverse, and equally representative of all those who might demand admission, is a society that has destroyed diversity. If that is what we want, it is not Byzantium’s angels but Tasmania’s devils who are leading the way.

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