17 October 2019

Have politicians handed the moral baton to lawyers?

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Last week, back-of-a-fag-packet calculations disclosed that I’ve written about thirty thousand words on Brexit for various outlets — locally, in the US, and in Australia.

Quite apart from revealing that the definition of Hell is re-fighting 2016’s referendum for all eternity, writing this much made it clear that Brexit is hard. Not only to achieve politically, but to analyse and explain in at least a minimally comprehensible way. Anyone who pretends otherwise is either deluded or understands what has happened since the vote very superficially.

Which is why, when I read Douglas Murray’s The Madness of Crowds: Gender, Race and Identity, that his brief account of two lawsuits (one actual, one potential) struck me as more complex than Brexit was genuinely alarming.

Most reviews have focused on Murray’s frontal assault on contemporary attempts to sacralise certain race, gender, and sexual identities as ineluctably “oppressed” and therefore virtuous, something I won’t repeat. My desire here is to flesh out the law he sketches only lightly for the simple reason that he isn’t a lawyer.

The first case is American, and involves litigation against Harvard University, alleging that it discriminates against Asian-American applicants in its admissions. More specifically, the plaintiffs, Students for Fair Admissions (SFFA), claim Harvard uses a quota system to restrict the number of Asian-American students it accepts. This case is different from past challenges to race-conscious admissions policies because members of a racial minority claim they face penalties when compared both to whites and other minority groups. Historically, plaintiffs in anti-affirmative action cases have tended to be solitary figures, and white. Here, there are thousands of them, and none are white.

Murray notes how Harvard was forced during the discovery process to hand over about 90,000 pages of internal admissions documents. Excerpts are now publicly available in court filings and are all over the Internet.

The picture revealed is not an attractive one. Very briefly, an Asian-American with a 25% chance of admission would have a 35% chance (ceteris paribus) if he or she were white, a 75% chance if he or she were Hispanic, and a 95% chance if he or she were African-American. Worse, the percentage of students admitted from each racial category has remained constant over a number of years, despite demographic fluctuations both in the wider US population and in the number of applicants from each group. Most notably, the number of Asian-Americans admitted annually has been steady at about 20% despite a rapid increase in the number of qualified applicants.

This looks like a quota — the cutesy-pie expression sometimes used instead of “quota” is “racial balancing”. Although US law allows race to be used as “a plus factor” in admissions, quotas are unlawful. That quotas are being used seems reasonably obvious: Harvard admits in its depositions that a “significant reduction in the number of African-American and Hispanic students on campus would inhibit…the benefits of a diverse student body and significantly undermine [Harvard’s] educational mission”.

Worse again, the discovered documents reveal that Asian-Americans have been knocked back based on assessments of character, not intellect: supposedly they are less kind, less friendly, and less likeable. Now obviously universities want to avoid admitting smart psychopaths (remember, the Unabomber went to Harvard), but this is ridiculous and amounts to the crudest sort of racial stereotyping.

We’ve also been here before: in the 1920s, University President Abbott Lawrence Lowell sought to curb the number of Ashkenazi Jewish students gaining admission to Harvard, and did so using the same method. His “character and fitness” admission criteria revolved around “five pillars”: academic promise, personal qualities, health and athleticism, geographic distribution, and Harvard parentage. Harvard stressed that “personal qualities of character” were of “major importance” in its decision-making process. Lowell’s policy remained in effect into the 1940s. It dramatically cut the number of Jews attending.

Murray calls this “the world’s ugliest landmine”, and he is absolutely right. If I were acting for Harvard, I’d be bloody bricking it right now, and not due to fears of losing in the SCOTUS (where this case is undoubtedly heading).

I’d be bricking it because regardless of how the US’s superior constitutional court rules, this case forces us to look at things we have studiously avoided looking at for decades. Even the most basic reporting on it forces one to wonder why, statistically, Asian-Americans are so much cleverer than everyone else. It asks us: but what if people aren’t equal?

“Equality in the eyes of God is a core tenet of the Christian tradition,” Murray points out. It is something that marks European Christianity off from the great civilisation that came before it. To a pagan Roman, if you were beautiful, or clever, or brave, you were a better person. And if any of those traits happened to be coupled with Roman citizenship, even finer. This point is made with great force and copious evidence in classicist Tom Holland’s latest book, Dominion: the Making of the Western Mind.

“But it has translated in the era of secular humanism not into equality in the eyes of God but equality in the eyes of man,” Murray continues. “And here there is a problem, which is that many people realise, fear or intuit that people are not entirely equal. People are not equally beautiful, equally gifted, equally strong or equally sensible. They are certainly not equally wealthy. They are not even equally lovable.”

Much as I like my profession, I suspect resolving this to the satisfaction of the majority of the US population — or even some substantial minority of it — is above the legal profession’s collective pay grade. Here is something that belongs properly in the political realm, to be debated and voted on by legislatures and electorates. But as Murray observes, we have become very bad at debate, which means politics is now hived off to some other discipline for resolution in a frankly obscene version of intellectual pass-the-parcel.

The second case is not discussed in Murray’s book, because news of it only broke on the weekend. Briefly, the mother of a child being treated at the Tavistock and Portman NHS Trust — which runs the Gender Identity Development Service, the child is transitioning from female to male — is suing the Trust in negligence, claiming that her fifteen year-old-daughter is autistic and therefore cannot provide informed consent to treatment with “puberty blockers”. She claims such treatment — when it comes to children — should only be undertaken pursuant to court order.

This is a case calculated to test “Gillick competence” to absolute destruction. Gillick competence refers to the common law rule in England and Wales (and statute in Scotland) permitting children under 16 years of age to consent to their own medical treatment without the need for parental permission or knowledge. Of course, this is set all about with fever-trees: every time it is litigated there is intense focus on whether the child in question has achieved sufficient insight and intelligence to understand fully what is proposed.

Courts expect medical professionals to ensure that children understand all aspects of the treatment — including the risks involved. This includes establishing whether their physical or mental health is likely to suffer without it, that it is in their best interests, and that an effort has been made to convince children to talk to their parents in situations where non-disclosure is an issue.

The discussion of relevant risks is of particular importance, and not just for children. In Montgomery v. Lanarkshire Health Board, the leading case on (adult) informed consent, the UK Supreme Court made two things very clear: first, doctors must disclose significant risks, but they must also disclose risks of particular importance to the patient in question.

This is, in layman’s terms, a high bar. Doctors and even more so consultants are held to a higher standard than “the man on the Clapham omnibus”. They are now also unable to hide behind what used to be called “the standard of a responsible body of medical opinion”, something that led to medical negligence trials where a parade of experts (meaning, “doctor’s mates”) would be called as witnesses to show whatever dodgy deed the doctor was alleged to have done was nonetheless common medical practice.

The medical negligence pinch-points of interest to lawyers and courts are set out with admirable clarity in Murray’s “trans” chapter. Ordinary members of the public may get banned from Twitter and arrested by Plod for raising them, but these are questions litigators cannot duck. How likely is gender dysphoria to be misdiagnosed? What is the significance of co-morbidities like autism or anorexia? Do patients — both Gillick competent children and adults — understand that puberty blockers and, later, surgery, are major treatments with life-long effects that can go badly wrong? Are there alternatives that involve less dramatic medical intervention? Is suicide statistically likely let alone inevitable if children’s gender identities are not affirmed?

There is also the reality that five years ago, 468 children were referred to the Tavistock and Portman NHS Trust. In 2018, 2519 children were referred. It is not taking a pop at the NHS to note that an inevitable consequence of universal health care free at the point of use is a degree of rationing. Everyone knows this, and the NHS remains enduringly popular despite it. Even with the best will in the world, it’s difficult to maintain standards when the number of patients seeking treatment continues to climb at such a rate.

Experts will be called, including experts trans activists despise. The case will be widely reported and discussed across the press and on the BBC. Evidence from endocrinologists and biochemists drawing on what happened to East German athletes historically (who were often given testosterone as children) will be ventilated. Attempts to prevent public debate by making “transphobia” claims — an effective strategy when directed solely at social media companies — will fail. And because we have conversed about this issue so ineptly, the Great British Public will witness a Passchendaele of cross-examination whose boundaries are drawn by counsel and rules of court and not by scientists and Parliament.

I made a brief observation to this effect on Twitter on Sunday, only to have people draw comparisons to PPI and vaginal mesh litigation with a fair bit of glee. “Were you mis-sold a sex-change? You might be entitled to compensation!” was a common sentiment.

That gag is a reminder there’s often a “yuck factor” when it comes to what Americans call plaintiff law and not a few Brits consider ambulance chasing. Anyone who’s had a stranger call them out of the blue enquiring if they were in an accident on such-and-such date has seen a bit of tort law’s greasy underbelly. One of my enduring memories involves an abattoir employee who claimed to have lost the use of his right arm while grappling with meathooks. The abattoir’s insurance company parked an ACME furniture van full of recording equipment in his street, where it filmed him making use of an angle grinder in the garden. This footage was played at trial along with the observation that using an angle grinder was incompatible with only having one functioning arm. Insurance companies play for keeps.

As religion declines in developed countries, a significant amount of moral “work” is now falling to the legal profession. One thinks of the Mick Philpott arson and manslaughter case, where Lady Justice Thirlwall’s sentencing remarks both improved and consoled the nation. A similar fondness for the performance of moral clarity by both lawyers and judges animated much of the commentary following the recent ruling that Parliament was unlawfully prorogued. What an old colleague of mine calls “a slice of Tavistock Torte” is in many ways also a plea for lawyers to supply a spoonful of sugar to make the moral medicine go down.

Lawyers may not be paid to be priests, but we are paid to be paranoid.

These two cases are making me paranoid.

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Helen Dale read Law at Oxford and won the Miles Franklin Award for her first novel, The Hand that Signed the Paper. Her latest novel is Kingdom of the Wicked; it was shortlisted for the Prometheus Prize for science fiction.