Follow up: Could a person decline to offer intimate waxing to an LGB person on the grounds of religious belief?
This is a follow-up to an article I wrote calling out the bullshit of a pre-op trans woman that was suing a waxing salon for turning her away for female bikini waxing. A reader posed a further scenario building on some of what I wrote about by asking:
“Let’s say a waxing technician has religious beliefs that state they cannot touch someone in an intimate and sexual manner other than their spouse. A client comes in who happens to be a lesbian. Would it be fair for the technician to ask them if they are lesbian and deny them service if they feel the interaction will be “sexual” since the client likes woman? If they were the only one available and denied service and that client was turned away would that be acceptable discrimination? Otherwise the tech would be forced to perform a task she does not consent to, which is similar to the arguments made in this article.”
Interesting question… I had to think about it beyond just my instinctive reaction, but having broken it down here’s my take:
There are two different things being asked:
1. Does a person offering a service have a right to know or ask someone’s sexuality?
2. Can they decline to offer the above service on moral or religious reasons or is it discriminatory?
I’m going to deal with the second question first:
Can a religious person decline to provide a service to a LGB person?
I think your scenario is a clearly different situation than the real world one I was writing about, but let’s look at it:
In the original situation a person with a penis was asking to pay for a vulva waxing to epilate their crotch. The product that they wanted (male bikini waxing) was not being offered by the salon. In my original article I covered why I felt that it is reasonable to say that the trans woman could not simply identify her way into being eligible for female genital waxing, so I’ll not revisit that here.
In your proposed situation a person with a vulva wants the service, so no problem. However your wild card is that she’s a lesbian. And does a muslim or other religious technician have the right to know if she’s touching the genitals of someone that may be attracted to her or find the experience sexual in some way? And could she reasonably decline to participate on that basis?
I would firstly dismiss the premise that having one’s bits waxed is a sexual thing. It’s a pretty transactional, almost medical as a procedure. In my experience technicians treat the area in a very clinical way and when I’ve been the recipient of the service, I’ve been worried about all sorts of silly things like whether I’m clean enough and frankly the process is pretty acutely uncomfortable and I’ve just wanted it to be over. I do not think it could be described as a sexual experience any more than a genealogical exam could be.
So we therefore find ourselves asking “could a gynaecologist decline to examine a lesbian on the grounds that the woman could be attracted to her?”
LGBTI healthcare is not at all plain sailing. Many people in all letters of the community have faced difficulty in accessing basic healthcare. Some of the time this is cited as being religious or moral objection. But I would personally say that this is clearly discrimination. Exclusion based on sexuality of gender is considered discrimination and illegal under European, UK and Canadian law and in some states in the USA . For example, there was a recent case in the UK where a doctor was sacked because he had an ideological position against using preferred pronouns with trans people because of religious conviction. However this is by no means universally guaranteed these days, especially in the Trump/Pence USA).
So on the above point, it seems to me that a person that has signed up for employment to deliver certain services cannot refuse to perform those services purely on religious grounds. But how is this different to the hypothetical muslim woman in my original article that might not want to handle a penis during a bikini waxing session? Well in that (again hypothetical) situation the employee had entered into employment deliver female intimate waxing and would (hypothetically) been asked to provide it on what society would consider to be a male body part. I.e. it was not something that was part of the role that she’d signed up to do. One could question whether this creates a discriminatory environment for the muslim woman in that she is effectively unable to enter into employment in any salon where male waxing may be offered and I think this is a fair point. I think, however, one could apply a common sense test — could a vegan working in an abattoir object to being compelled to slaughter animals? I think most people would find this an absurd question that places the burden of responsibility on the vegan to not seek employment that they find unethical rather than employer. It will be interesting to see how this tension plays out over the coming years. My suspicion is that potentially contradictory caselaw will be created (No you can’t discriminate against muslims and no you can’t discriminate against LGBT people).
Furthermore we also need to zoom out further and dismiss the premise that the hypothetical lesbian would be attracted to the technician. This feels like a premise that’s rooted in 80’s and 90’s style homophobia where in a parallel to today’s anti trans bathroom debate, people were worried about gays in locker rooms. It assumes that all LGB people are sex crazed predators and perverts that are drooling at the thought of every same sex interaction however mundane. Most LGB people have had to, at some point, explain that “my attraction to same sex people is not all same sex people…. it works just like opposite sex attraction and straight people aren’t attracted to everyone on the planet of the opposite sex are they?”.
That leaves us with the remaining point:
Does someone have the right to know someone’s sexuality (or any other personal detail) prior to delivering a service to them?
This question is composed of two sub questions:
- Is it right to require LGB people to disclose their sexuality?
During the second world war, gay prisoners in concentration camps were required to wear special badges to identify themselves. So I’m just going to jump to the chase and say no. It’s not acceptable to require an LGBT person to out themselves.
Is there ever a situation where this is not the case? I’m not sure, but I can’t think of a situation where it might be legitimate to compel an LGBT person to out themselves. But for the sake of the discussion, let’s think about the proposed scenario… The only reason that the person is being asked to disclose is so that they can be denied services. This is essentially requiring someone to become the tool of their own discrimination. It is slightly circular in that it accepts the premise that it is ok to discriminate.
I think this extends way beyond LGBT rights all the way to what rights we have as conscious individuals. Do I have the right to private thoughts or does the state, other private institutions or individuals have the right to know my thoughts and feelings? I think it’s pretty non controversial to say that the right to private thoughts is one of the most fundamental human rights somewhere close behind the right to life.
2. Is it practicable to enforce this?
Even if we lived in some dystopian reality where people were required to disclosed gay thoughts upon accessing a service, would it even be viable to enforce this?
Fact 1: People can just chose not to disclose:
Sandwich shop sign: [No gays, blacks or Jews]
Owner: Are you gay? We don’t serve gays here.
Gay person in need of a sandwich: “Nope — one hetrosexual sandwich please”
Owner: OK… One sandwich coming right up.
Clearly we don’t want to find ourselves in this situation as not every LGB person has passing privilege (where they can blend into the straight community and not face discrimination) and it forces those that do have it back into the closet in some awful regression to the 1960s.
Fact 2: Not everyone’s even sure & the definitions aren’t clear:
Furthermore even if it was practical (and not morally wrong) to enforce disclosure, for many the answer isn’t quite so clean cut:
Sandwich shop sign: [No gays, blacks or Jews]
Owner: “Are you gay? We don’t serve gays here”
Customer: “Well… it depends on how you look at it. I’ve never had a same sex relationship, but I’d be lying if I hadn’t regularly imagined about what it would be to be with someone of the same sex… So I do have gay thoughts…. I definitely do have this weird gay crush on [insert Celebrity name]… so maybe I’m bi… Or maybe that’s the way most straight people feel? I dunno… but on the other hand I don’t feel very sexual a lot of the time… so I sometimes thing I might be asexual… Do you make sandwiches for asexual people? Maybe I’d say I’m like 8 out of 10 straight. Just to clarify… how straight do you need to be to get a sandwich here?”
Owner: “well as long as you haven’t acted on anything… I guess you can have a small sandwich”
— — — — —
So in summary to answer the question:
I don’t believe that the hypothetical Muslim woman should be able to turn away the hypothetical lesbian, nor do I believe that she has the right to know or ask a customer’s sexuality.