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Written by Neil Levy

A dad joke is a short joke, often turning on a pun or a play on words. Here are a couple of examples:

  • Did you hear about the restaurant on the moon? It’s got great food, but no atmosphere.
  • A sandwich walks into a bar and orders a beer. “Sorry,” says the bartender, “we don’t serve food here”.

They are called ‘dad jokes’ because they are stereotypically told by fathers. The term is a somewhat backhanded compliment. Like the words “daggy” (in Australian and New Zealand English) and “naff” (in British English) – all of which are words that could appropriately be used to describe jokes in the genre – calling something a dad joke at once conveys that is extremely uncool, but also indicates grudging affection for the target. Dad jokes are bad, in many people’s eyes (not mine, as it happens), but they’re so bad that they’re a kind of artform all of their own, and we convey an affection and grudging respect for those who tell them.

I like dad jokes. Some of them are inventive and I find them amusing. But I worry about the name. Calling them “dad jokes” seems to me to be sexist.

Roughly, to call behavior sexist is to say that it expresses attitudes that classify people on the basis of sex, when sex is irrelevant. It’s not sexist to offer maternity leave to women only, because sex is relevant to pregnancy. It is sexist to offer advanced mathematics to men only, because sex is not relevant to mathematics. Sexist behavior is not always directlywrong. It is directly wrong to offer advanced mathematics to men only, because it closes down possibilities that would otherwise have been open to women. But it may nevertheless be indirectly wrong, even when it is not directly wrong.

Calling this genre of jokes ‘dad jokes’ doesn’t strike me as directly wrong. It may nevertheless be indirectly wrong. I think it expresses – and perhaps plays a small role in reinforcing – attitudes that are bad for men and for women.

First, for men. The idea that dads are daggy (to use the Australian word) associates fatherhood with a loss of masculinity. Before children, men are real men; after children, not so much. Both stereotypes are constraining. The first may play a role in the epidemic of male suicide, with men implicitly thinking that real men face their problems alone, and real men bear prime responsibility for the wellbeing of their families. The second stereotype, insofar as it is emasculating, may play a role in men attempting to avoid parental responsibilities. Better stereotypes would avoid the suggestion that masculinity is compromised by childrearing or by emotional dependence on others.

But the idea that dads are daggy may be bad for women too. While the “dad” stereotype is mixed, it contains positive elements. It associates dads with intellectual capacities worth having. With their plays on words, and often their display of knowledge, dad jokes associates men with intelligence. This association reflects, and may reinforce, our implicit biases; our implicit assumption that a male candidate is likely to better at certain tasks than a female who possesses equal qualifications. So the association is likely bad for women too.

I don’t think the sexism of “dad joke” is a burning issue. I doubt the harms arising from this linguistic quirk are major. Nevertheless, as part of a pattern of gendering language and thought, this kind of sexism is best avoided. At worst, we lose nothing by referring to them as corny jokes, or daggy jokes, or what have you. At best, we may thereby play a small role in improving the future for both men and women.

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A Guest Post Written by Jonny Anomaly

It’s been 20 years since Allen Buchanan and his colleagues published From Chance to Choice: Genetics and Justice. The book was a landmark, and it repays careful reading.

But there is at least one kind of question that has been largely (if not entirely) ignored in discussions about whether we should regulate parental choice, once parents have access to technologies that allow them to sculpt the genetic endowment of their children. How should we think about reproductive choices that are good for each but not for all? What should we do when there is a conflict between parents selecting the best traits for their children, when a different distribution of traits might be better from a social standpoint? Another way of asking the question is this: how should we think about situations in which there is a potential conflict between the principle of procreative beneficence and the principle of procreative altruism?

Bioethicists like Dan Brock have argued that, although there should be a presumption in favor of reproductive liberty, there may be reasons to regulate parental choice when failure to do so would produce serious harm to the child, or would undermine a public good. For example, assuming that some degree of cognitive diversity helps groups of people solve complex problems, cognitive diversity in a population is a public good. Other reproductive public goods include maintaining a balanced sex ratio, and preserving immuno-diversity in a world of rapidly evolving microbes.

Let’s take a specific case of a psychological trait. Suppose studies tell us that extraverts tend to have more friends, more sexual partners, and report slightly higher subjective satisfaction than introverts. Now suppose that introverts are more likely to creatively solve important problems when they are left alone, but don’t perform as well as extraverts in social settings. To the extent that it’s possible, individual parents might select for more extraverted children even if it’s socially beneficial to have introverts in a population.

I’m not arguing that these are binary personality traits, or that they’re purely genetically determined. I’m only arguing that traits like these are influenced by genes, and that for any personality trait we can think of, we cannot simply assume that the ability to select or alter our children’s genes will always produce a socially optimal distribution of traits.

In thinking about cases like this, it’s worth mentioning a principle named by Amy Guttman: Regulatory Parsimony. Guttman worries that bioethicists are often too quick to call for rules against using novel biomedical technologies. As Guttman says, “the blunt instruments of statutory and regulatory restraint may not only inhibit the distribution of new benefits, but can be counterproductive to security and safety by preventing researchers from developing effective safeguards.”

By contrast, the principle of regulatory parsimony recommends “only as much oversight as is truly necessary to ensure justice, fairness, security, and safety while pursuing the public good.” While the principle of parsimony is vague, on one interpretation it’s the familiar principle of the least restrict alternative repackaged in a form that applies to synthetic biology in general, and genetic enhancement in particular.

I’d like to give a few reasons to endorse this approach to enhancements for cases in which there is a conflict between what is (believed to be) good for each and what is (believed to be) good for all:

First, complex laws are often easier for powerful people to navigate, and tend to increase unjust inequalities by raising the relative cost of accessing new technologies. For example, medical tourism is already thriving for organ transplants and surrogacy, and it is likely to happen for gene editing and embryo selection as well. Too much regulation can harm the worst off by making access prohibitively expensive, and by creating black markets that are harder for poor people to navigate.

Second, too many laws can crowd out social norms, which are more sensitive to local conditions than laws are. For example, if local sex ratios are likely to deviate from 50/50 as more people use IVF and PGD, it may favor one sex or another in different places. Norms are better than laws at influencing these choices, in part because there is likely to be more value to choosing the opposite of whatever sex happens to be in the majority at a particular place and time.

Finally, regulators have their own biases. They often lack the information needed to find a socially optimal distribution of traits, and lack the incentives to implement it. Past eugenics programs ceded too much authority to the state even if, as Allen Buchanan has argued, states do have a role in promoting informed choice and distributing biomedical technology to parents who wish to select the traits of their children.

I expand on these themes in a new paper, written with Chris Gyngell and Julian Savulescu, and in a recent talk at Duke University.

Is there anything I’m missing?

Jonny Anomaly is an Academic Visitor at Oxford’s Uehiro Centre for Practical Ethics.

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In a fascinating presentation hosted in March by the Oxford Uehiro Centre in Practical Ethics, Professor Seumas Miller spoke about what is now known as ‘moral injury’ and its relation to PTSD, especially in the context of war fighting and police work.

Miller began by explaining the standard view of moral injury, as used in the work of, for example, Nancy Sherman and Jonathan Shay. Like PTSD, it arises from highly stressful events, such as events threatening one’s own life or the loss of a comrade. PTSD can be said to consist in extreme mental distress, involving fear, depression, and other negative states, along with physical or cognitive impairments, such as memory loss or insomnia. Moral injury is usually taken to be a species of PTSD which involves experiences, such as the killing of an innocent, that involve the violation of an individual’s own moral values.

Miller, however, argued that PTSD is in effect a species of moral injury. He first outlined the notion of what it is involved in caring about something which, or someone who, is worthy of being cared about. Objects of such care might include one’s own life, the lives of one’s comrades, one’s own autonomy, and the approval of others. If any of these is taken away, the moral identity of the ‘caring-self’ will itself be damaged.

At this point, Miller focused in particular on war fighters and police officers. These individuals deeply care about the things most human beings deeply care about, but they are also willing to put themselves in harm’s way and to use potentially harmful methods to achieve their goals. Consider in particular the concern such people often have for honour, as it consists in loyalty, self-discipline, and so on. These virtues are clearly elements of their moral identity.

We can now understand how, on a care-based account, the relation between moral injury and PTSD can be differently understood. Moral injury mightinvolve the sufferer’s acting wrongly or wrongdoing, but it need not. The traumatic event causing PTSD undermines core elements of their moral identity. PTSD, then, turns out to be a species of moral injury, rather than the other way round.

Miller then turned to the issue of ‘dirty hands’ and moral injury. First he noted the possibility of conflict between an individual’s role identity (as, say, war fighter) and their inter-personal identity (as, say, father). Consider cases in which a war fighter kills an enemy terrorist, guilty of terrible war crimes, or an innocent civilian, believing the killings to be both morally and legally prohibited. (Structurally similar cases can be imagined for police work, involving the treatment of criminals and innocent parties.) Such actions might be placed in the category of ‘dirty hands’ – legally and morally prohibited actions performed for good ends. It is easy to see how considering such actions and then performing them can lead the agent down a slippery moral slope, in which such actions become habitual, and also how – given the conflicts between identities mentioned above – can lead to moral injury and indeed PTSD.

Miller closed with several recommendations for reducing moral injury of this kind in war-fighting and police work: Recruit the resilient; provide ongoing training; avoid disastrous failure; reduce stressors; provide supportive leadership, ethics training, and opportunities to consult psychological injury professionals; communalize moral injury through collective moral responsibility.

There may be responses available for the defender of the ‘standard’ view of moral injury and its relation to PTSD. Miller himself allowed that we can distinguish PTSD into two types, mirroring the phenomena described in the standard view as PTSD and moral injury – i.e., those which involve moral responsibility in some respect, and those which do not. But it may well be that the moral/non-moral distinction at work in the standard view is less significant than it appears at first sight, and so the pressure Miller puts on that distinction, and his articulation of a more capacious evaluative alternative in the notion of moral identity, is a very welcome intervention in the debate.

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Written by: Carl Tollef Solberg, Senior Research Fellow, Bergen Centre for Ethics and Priority Setting (BCEPS), University of Bergen.
Espen Gamlund, Professor of Philosophy, Department of Philosophy, University of Bergen.

In 2015, there were 56.4 million deaths worldwide (WHO 2017).[i] Most people would say that the majority of these deaths were bad. If this is the case, why is it so, and are these deaths equally bad?

Death is something we mourn or fear as the worst thing that could happen—whether the deaths of close ones, the deaths of strangers in reported accidents or tragedies, or our own. And yet, being dead is not something we will ever live to experience. This simple truth raises a host of challenging philosophical questions about the negativity surrounding our sense of death, and how and for whom exactly it is harmful. The question of whether death is bad has occupied philosophers for centuries, and the debate emerging in the philosophical literature is referred to as the “badness of death.” Are deaths primarily negative for the survivors, or does death also affect the decedent? What are the differences between death in fetal life, just after birth, or in adolescence? When is the worst time to die? These philosophical questions, although of considerable theoretical interest, is particularly relevant for how we evaluate deaths in global health, and policy-makers spending money to finance different health programs need to know how to answer them. 

Two Disconnected Debates

The ancient philosopher Epicurus (341–270 A.D.) would not have thought that the deaths of the 56.9 million people mentioned above were bad for them. Epicurus argued that death is not prudentially bad for us because “as long as we exist, death is not with us; but when death comes, then we do not exist” (Epicurus 1940, 30–34). Many contemporary philosophers disagree with Epicurus and believe that death can be bad for those who die. Most notably, Thomas Nagel (1970) argued that death can be bad for those who die when and because it deprives them of the good life they would have had if they had continued to live. This marks the beginning of the debate emerging in the philosophical literature referred to as the “badness of death.” Moreover, Nagel’s so-called Deprivation Account has come to be regarded as the orthodox view as to why death is prudentially bad.

There are a few trends in the current philosophical debate that are worth mentioning. First, the debate is secular in tone with the assumption that permanent non-existence follows death. Second, the focus is on the instance of death rather than on the process of dying. Third, most of the discussion is concerned about whether death can be prudentially bad for those who die, rather than bad for everyone else but the decedent, such as family, friends and society.

Up until the 1940s, epidemiology was primarily concerned with mortality rates, such as the crude death rate and age-specific death rates (Dempsey 1947). The crude death rate is merely the number of deaths per year per 1,000 people, while age-specific death rates are crude death rates restricted to an age group. Following mortality rates, none of the 56.4 million deaths is ranked as worse or better than the other. Descriptive measures have their virtues as they are simple, transparent, and inherently universal. It can be argued, however, that this leaves out something of importance. First, clearly some deaths are worse than others, and these descriptive measures are silent about this fact. Second, one may question whether descriptive mortality measures—without further adjustments—are suited for comparison and aggregation with morbidity measures. These and similar concerns can be addressed by mortality measures that are to some extent evaluative.

Evaluating Deaths

Consider the deaths that occurred worldwide in 2015. Of these 56.4 million deaths, 2.7 million were those of infants, and 5.9 million were those of children from birth and up until 5 years of age. The deaths of people from 5 to 14 years of age counted 1 million. The majority of the 56.4 million deaths were those of older adults. Furthermore, there were roughly 2.6 million stillbirths not included in this WHO statistic of the total number of fatalities. Do we want to say that all these deaths are equally bad?

It would seem that our answer to this question depends on our theoretical starting point. If deaths are bad for those who die primarily because of what they are deprived of, then it would appear that the earlier in life death occurs, the worse it is. Newborn deaths, for instance, would be worse than adolescent deaths because newborns are deprived of a greater future than adolescents. While many philosophers seem to accept this conclusion (Marquis 1989; Feldman 1992; Broome 2004; Bradley 2009), others seek to defend intuitions that conflicts with it. The latter group considers the death of an adolescent to be worse than the death of a newborn, even if the newborn is deprived of a longer future (see, e.g., Dworkin 1993; McMahan 2002). Most philosophers would say that stillbirths should be included in WHO’s statistics because the death of late-term fetuses, although not a great misfortune for them, is nevertheless bad enough to be counted.

How we should evaluate the quality of life or well-being as such has been thoroughly discussed in both philosophy and in medicine. How we should evaluate deaths has not received similar attention. The question of the harm of death for the individual who dies is undoubtedly complex. However, by answering this question carefully, we can seek to design appropriate evaluative measures that can guide health policy around the world. To avoid the question, or to answer it rashly, is to risk getting global health priorities wrong. If we are mistaken in our evaluation of death, then our monitoring and assessing of the burdens of different diseases become impaired. For example, contrary to current practice, decisive arguments exist as to why one should include the annual 2.6 million stillbirths (2015) in the evaluation of deaths. Moreover, an illumination and improvement of the way we evaluate deaths can have consequences for how organizations such as WHO monitor health in the global disease burden study (GBD) and, not least, it may give us a better tool for prioritizing between major health programs that are intended to prevent deaths in different age groups. Ultimately, it will have consequences for the clinical work to prevent premature deaths in general and stillbirths in particular.

Future Discussions

We have recently edited and published an anthology—Saving People from the Harm of Death—which discusses how to evaluate deaths. In this volume, leading philosophers, medical doctors, and economists discuss different views on how to evaluate death and its relevance for health policy. This includes theories about the harm of death and its connections to population-level bioethics. For example, one of the standard views in global health nowadays is that newborn deaths are among the worst types of death, while stillbirths are neglected. This raises difficult questions about why birth is so significant, and several of the book’s authors challenge this standard view.

This is the first volume to connect philosophical discussions on the harm of death with discussions on population health, adjusting the ways in which death is evaluated. Changing these evaluations has consequences for how we monitor health and compare health outcomes, prioritize different health programs that affect individuals at different ages, as well as how we understand inequality in health. Our hope is that academics and policy-makers alike will be much more concerned and engaged in the question of how to evaluate deaths in the future.

References

Bradley, Ben. 2009. Well-Being and Death. New York: Oxford University Press.

Broome, John. 2004. Weighing Lives. New York: Oxford University Press.

Dempsey, Mary. 1947. “Decline in Tuberculosis: The Death Rate Fails to Tell the Entire Story.” American Review of Tuberculosis 61, 2: 157–164.

Dworkin, Ronald M. 1993. Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Vintage Books.

Epicurus. 1940. “Letter to Menoeceus.” In the Stoic and Epicurean Philosophers, edited by W. J. Oates, translated by C. Bailey, 30–34. New York: Modern Library.

Feldman, Fred. 1992. Confrontations with the Reaper: A Philosophical Study of the Nature and Value of Death.

Gamlund, Espen and Carl Tollef Solberg (eds.). 2019. Saving People from the Harm of Death. New York: Oxford University Press.

Marquis 1989 1989. “Why Abortion is Immoral.” The Journal of Philosophy 86, 4: 183–202.

McMahan, Jeff. 2002. The Ethics of Killing: Problems at the Margins of Life. New York: Oxford University Press.

Nagel, Thomas. 1970. “Death”. Nagel, Thomas. 1970. “Death.” Noûs 4, 1: 73–80.

WHO. 2018. “The Top 10 Causes of Death.” http://apps.who.int/mediacentre/factsheets/fs310/en/index.html (Visited 14.05.19).

[i] This essay is a shortened and revised version of the introduction in Gamlund and Solberg (2019).

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Dominic Wilkinson, University of Oxford

Shortly before Frenchman Vincent Lambert’s life support was due to be removed, doctors at Sebastopol Hospital in Reims, France, were ordered to stop. An appeal court ruled that life support must continue.

Lambert was seriously injured in a motorcycle accident in 2008 and has been diagnosed as being in a persistent vegetative state. Since 2014, his case has been heard many times in French and European courts.

His wife, who is his legal guardian, wishes artificial nutrition and hydration to be stopped and Vincent to be allowed to die. His parents are opposed to this. On Monday, May 20, the parents succeeded in a last-minute legal appeal to stop Vincent’s doctors from withdrawing feeding, pending a review by a UN Committee on the Rights of Persons with Disabilities.

Lambert’s case is the latest example of disputed treatment for adult patients with profound brain injury. The case has obvious parallels with that of Terri Schiavo, in the US who died in 2005 following seven years of legal battles. And there have been other similar high-profile cases over more than 40 years, including Elena Englaro (Italy, court cases 1999-2008), Tony Bland (UK 1993) Nancy Cruzan (US 1988-90) and Karen Ann Quinlan (US 1975-76).

Contrasting responses

There are two contrasting responses to cases like that of Lambert. Some people read about his case and react with horror at the idea of being kept alive against their will in a state where they are completely dependent, unaware of their surroundings and with no apparent prospect of ever recovering.

Other people respond with horror at the idea of stopping feeding and allowing a profoundly disabled man to die, when he does not appear to be suffering and could be sustained in his current condition for months or years.

There are also contrasting ethical arguments. Some people point to the lack of benefit for Vincent in continued life. Because he has no conscious interests, it is not in his best interests to keep him alive, the argument goes. Others contend that his essential human dignity remains despite his profound disability and that his life must be protected “until its natural end”.

The UN Committee for the Rights of Persons with Disabilities might have concern for the rights of the severely disabled to receive life-prolonging medical treatment. But there is a potentially competing right for disabled persons not to receive treatments they would not have wanted and not to have their lives prolonged in states they would have regarded as deeply undesirable.

It can be useful to debate such questions, but the long history of similar cases points to the ongoing challenge of reaching a common view on these issues. Quite simply, we will never all agree on what should happen in such cases. There are opposing reasonable ethical views. The important question is: what should we do in the face of such intractable disagreement?

Our societies are increasingly diverse; we have to accept that people have a range of different values and we should tolerate those differences. That acceptance and tolerance mean that we should allow people to live their lives based on their own ethical views and values, as long as they don’t harm others. It is perfectly acceptable for people to express their views about situations, such as that of Vincent Lambert. But it is not acceptable to impose other people’s views on Lambert’s life.

The only defensible ethical response to reasonable disagreement in cases like that of Vincent Lambert is to make decisions based on his values and wishes. If, as is claimed by Vincent’s wife, Vincent would not have wished to remain alive, then the wishes of his parents, of other doctors or of the Pope, are irrelevant. My views or your views on the matter, likewise, are of no consequence. Only Vincent’s wishes matter. And so life support must stop.

Dominic Wilkinson, Consultant Neonatologist and Professor of Ethics, University of Oxford

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Written by Stephen Rainey and Christoph Bublitz

Increasing use of brain data, either from research contexts, medical device use, or in the growing consumer brain-tech sector raises privacy concerns. Some already call for international regulation, especially as consumer neurotech is about to enter the market more widely. In this post, we wish to look at the regulation of brain data under the GDPR and suggest a modified understanding to provide better protection of such data.

In medicine, the use of brain-reading devices is increasing, e.g. Brain-Computer-Interfaces that afford communication, control of neural or motor prostheses. But there is also a range of non-medical applications devices in development, for applications from gaming to the workplace.

Currently marketed ones, e.g. by Emotiv, Neurosky, are not yet widespread, which might be owing to a lack of apps or issues with ease of use, or perhaps just a lack of perceived need. However, various tech companies have announced their entrance to the field, and have invested significant sums. Kernal, a three year old multi-million dollar company based in Los Angeles, wants to ‘hack the human brain’. More recently, they are joined by Facebook, who want to develop a means of controlling devices directly with data derived from the brain (to be developed by their not-at-all-sinister sounding ‘Building 8’ group). Meanwhile, Elon Musk’s ‘Neuralink’ is a venture which aims to ‘merge the brain with AI’ by means of a ‘wizard hat for the brain’. Whatever that means, it’s likely to be based in recording and stimulating the brain.

These developments highlight the intention to develop neural-interfaces to link computers with the brain, directly. Whether they will succeed remains to be seen. But BCIs are clearly going to be around for a while longer. With the kind of financial backing from tech companies, and high profile offered by figures like Musk, they are unlikely to be a flash in the pan.

These devices do not detect thoughts directly but record and process brain activity.  In doing this, they generate a lot of brain data. From the large amount of data collected, just a subset may of direct relevance for the operation of the devices they will control. This could be thought of as a kind of neural data exhaust. The status of this data raises interesting regulatory questions.

It seems quite clear that this trove of data is something that tech giants will be very interested in using. This will represent a data asset for various activities continuous with the interests they have already. Such interests include the profiling human behavior through datafication.

We can easily imagine some dystopian idea, wherein a company – let’s call them Schmoogle – create a game and measure how its players react to stimuli. This could supply direct measurement of brain activity relative to known stimuli as the players react in navigating their virtual worlds. In so doing, the players furnish a brain signal database.

A social media company too, let’s say Schmacebook, using the same kind of approach, might want to see how we react to every post much more directly than via thumbs-up and down. Brain data recording, by wizard hat or other means, could give a neurophysiological insight to the posts we see from granny, CNN, or some political party.

The type of mental states a person entertains, such as specific preferencesand emotional reactionsto all sorts of stimuli, could be tested in this way. A specific brainwave, the so called P-300 wave may reveal whether a stimulus is new or familiar to the person (its use for forensic purposes has been investigated for many years). Preferences or dispositions might be inferred, without users having anything special to do. All that’s needed is that they are using their computer via the BCI. They may not even be aware of it. These reactions are also not under the conscious control of the person so, in a sense, they tap into the unconscious. However, we hasten to note that fears about reading out thoughts or the content of mental states are premature.

This data is of course of great interest to many, including the tech companies whose power is grounded in technologies and data.  This kind of information would be of undeniable value to them. And there are many ways in which this might be problematic. Brain data might be easily instrumentalised in a variety of ways, even more in the context of increasing algorithmic sophistication and normalization of Big Data.

What to do? Normative side

The guiding ethical and legal idea that stands in some contrast to the collection of brain data is privacy, and here in the terms of mental privacy. The notion has just begun to receive attention by scholars, both in ethics and the law. A robust concept of mental privacy – and its limits – will be key for an apt regulation of brain data. Here, we wish to draw attention to an instrument, familiar to very many in the EU as it has transformed surfing the net into a continuous clicking on consent buttons, the General Data Protection Regulation(GDPR). How does the GDPR relate to the issues raised above in terms of the recording of brain data?

Among its provisions, the GDPR regards individuals as ‘data subjects’, and asserts each data subject’s rights to any and all personal data from which they might be identified. This is a large category. It means that companies that retain your contact details, for instance, must exercise care in sharing, storing, deleting that data. Different types of data attract different types of protection, depending on sensitivity. Health data sees higher levels of protection than some other types, as from this data very sensitive information may be derived about the data subject. If brain data is gained through medical devices, e.g. BCI in motor or speech rehabilitation, it regularly qualifies as health data. However, if it stems from consumer neurotech and recordings of the type envisioned by Facebook, Kernel, and Neuralink, the data might seem – on the face of it – not to constitute health data.

We wish to suggest that brain data – all such physiological recordings – should be considered as health data and be treated accordingly. Therewith, it would be afforded a high level of protection. The reason for this is the fact that brain data is as sensitive as the other forms of data in the category of special protection. Moreover, it seems to us that measurements of the body and mind were conceived by drafters of the GDPR as an instance of health data, which is a widely understood category. Drafters may not have had the expansion of non-medical recordings of this kind in mind.

As a consequence, the recording of such data, and all further uses, would require consent by the data subject (with the exception of ten special cases enumerated by the GDPR). This would provide a first layer of security.

But it might not be enough. As we all know from the way we deal with our smartphones, data subjects easily consent to having their data recorded and used, at least if they get something useful in return. We pay with data. Very likely, this will be the business model for brain data as well. And for this, the current GDPR does not offer satisfying solutions. Novel regulator frameworks might be needed. However, they should be developed for all sorts of data, including but not limited to brain data. It should be borne in mind also the increasing role for algorithmic processing, so that it is not easy to predict to what use troves of data may be put (data exhaust).

Data recorded for some purpose might result in a cache of collateral data that, once processed by future algorithms, may reveal information in unexpected ways about unexpected dimensions of the data subject. These potentialities, rather than an essentially special nature of brain data (neuroessentialism), ought to attract the highest protections.

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Written by Steve Clarke,

Wellcome Centre for Ethics and Humanities and

Uehiro Centre for Practical Ethics, University of Oxford,

&

School of Humanities and Social Sciences,

Charles Sturt University

Shamima Begum, who left the UK in 2015 at age 15, to join the Islamic State, has been the subject of consistent media attention since she was discovered in the Al-Hawl refugee camp in Northern Syria, in February this year. Soon after being discovered in the refugee camp Begum was controversially stripped of her UK citizenship by Home Secretary Sajid Javid. Citizenship can be removed by the Home Secretary if doing so is deemed to be ‘conducive to the public good’. While it is illegal to render a person stateless, the Home Secretary is entitled to deprive UK citizens of their citizenship if they are also citizens of another country, or if they are eligible for citizenship in another country. Begum may be eligible for citizenship of Bangladesh, given that she has Bangladeshi ancestry, and there is a legal argument that she already is a citizen of Bangladesh.[1]

The Home Secretary’s decision has been much discussed in the media. Some commentators have argued that Begum’s interests should not be trumped by considerations of the public good. Others have questioned the legality of the decision. Still others have complained about the secretive nature of the decision-making process that led the Home Office to recommend to the Home Secretary that Begum be deprived of her citizenship. Here I will be concerned with a different issue. I will set aside considerations of Begum’s interests and I will set aside legal and procedural considerations. I will focus on the question of whether or not it is actually conducive to the public good in the UK to deprive Begum of her citizenship. Like most people, I do not have access to all of the information that the Home Secretary may have been apprised of, regarding Begum’s activities while she was living in the Islamic State, which would have informed his decision. So what I will have to say is necessarily speculative.

Begum has claimed to have been a housewife for the four years during which she was living in the Islamic State. However, there have been allegations that she was a member of the Hisba, the Islamic State’s morality police, in charge of enforcing strict Islamic dress codes and punishing practices deemed un-Islamic.[2] There have also been claims that she stitched suicide bombers into explosive vests, preventing them from removing the vests without detonating them.[3] These allegations do seem relevant to the decision to revoke her citizenship. If true, they suggest that she is, or has been, an enthusiastic supporter of the Islamic State and an abetter of terrorism. Also relevant are some ill-considered media comments she made earlier this year. In one interview she suggested that the Manchester Arena bombing of 2017, which resulted in 23 civilian deaths, was justifiable as a form of retaliation for coalition bombing in the Islamic State. In the same interview she also offered an apparent justification for the killing, enslavement and rape of Yazidi women in the Islamic State.[4]These comments do not strike me as actual instances of Begum encouraging terrorism, however they suggest that she remains sympathetic to terrorists and her sympathies for terrorists might lead her to encourage terrorism in the future.

Why might it be conducive to the public good to strip Shamima Begum of her UK citizenship? I take it that only very serious considerations are sufficient to justify an action as significant as revocation of citizenship. Her lack of empathy for others and her confused reasoning about the justifiability of some terrorist acts, while regrettable, do not constitute anything nearly significant enough to justify the revocation of citizenship. What might constitute a sufficient reason to revoke her citizenship would be if there was a realistic chance that her return to the UK would threaten national security. If she was likely to conduct a terrorist act, or assist terrorists in conducting such an act, or encourage terrorism, upon return to the UK, then there might be prima facie reason to revoke her citizenship and so prevent her from returning to the UK. It may be that the Home Office has concluded that she is likely to do one or more of these things if she were to return to the UK, and so has revoked her citizenship in order to prevent her return.

On the basis of the information that is available in the public domain, it seems very hard to believe that Begum would have the opportunity to conduct a terrorist act, or to assist terrorists should she return to the UK. Given her new-found notoriety she would be vanishingly unlikely to have an opportunity to plan a terrorist act without this being uncovered. Nor is it at all likely that she would have the opportunity to assist terrorists. Any competent terrorist would steer well clear of a celebrity Islamic State returnee. The most realistic source of concern is that she might attempt to encourage terrorism were she to return to the UK. However, this does not strike me as a good reason to prevent her return. If she were of a mind to attempt to encourage terrorism she could do so from any place where she had access to the internet. So, it is hard to see how allowing Begum to return to the UK would enhance her ability to encourage terrorism. On the contrary, a return to the UK would diminish her ability to encourage terrorism, because she would be under close scrutiny in the UK, and would be liable to be prosecuted were she to attempt to encourage terrorism, and could be jailed for up to seven years. While she remains in a relatively lawless part of Syria she is much more likely to be able to encourage terrorism and go unpunished.

The Home Secretary does not have to be satisfied that someone poses a threat to national security to revoke their citizenship. Citizenship can also be revoked if someone is deemed to have breached their duty of loyalty to the UK ‘so fundamentally that it cannot be reasonable to expect the state to continue to provide him with the protection that flows from citizenship’.[5] While Begum’s possible participation in the Islamic State’s morality police and possible provision of support for Islamic State suicide bombers are lamentable, it is hard to construe them as constituting a fundamental breach of loyalty to the UK. All the information that has so far come to light suggests that at most Begum was a minor contributor to the functioning of the Islamic State. It is very hard to see how her minor contributions to the Islamic State could constitute a fundamental breach of her duty of loyalty to the UK.

It could be that Sajid Javid revoked Begum’s citizenship because he decided, inter alia, that it is in the public interest to send a message to would-be terrorists and abetters and encouragers of terrorism: if you attempt to commit terrorist acts, assist terrorist acts, or encourage terrorism then you will be liable to have your citizenship revoked too. If he has reasoned this way then, I think, he has made a mistake. It’s far from clear that many terrorists and supporters of terrorism who are eligible for, or hold, dual citizenship, will be deterred by the threat of losing citizenship in a country whose values and institutions they already reject, especially if they are able to continue to commit, abet or encourage terrorist acts elsewhere, after they have had their UK citizenship revoked. A far better deterrent is to prosecute terrorists and their supporters, and jail those found to have broken the law.

I’ve examined potential reasons for revoking Shamima Begum’s citizenship and suggested that none of them seem particularly decisive. It might be that there are good reasons for revoking the citizenship of some supporters of the Islamic State, but it doesn’t appear that any of them apply to Begum. I want to end by mentioning two important reasons for not revoking Begum’s citizenship. The first reason is that the revocation of her citizenship contributes to a growing sense of ‘citizenship insecurity’ in the UK. There are many UK citizens living in the UK, who either hold dual citizenship, or are eligible for dual citizenship. As things stand they are all liable to have their citizenship revoked and to be evicted from their homes in the UK and forcibly relocated to other counties, as a result of a secretive deliberation process conducted in the Home Office. This ongoing state of citizenship insecurity is distressing to all of these UK citizens.

The second reason for not revoking Begum’s citizenship is that doing so harms the international reputation of the UK. It makes the UK look like an irresponsible country that seeks to impose problems created in the UK on others. The Bangladeshi Foreign Minister has made it very clear that Bangladesh has no desire to accept Begum as either a citizen or a resident; and the UK’s attempt to impose the problem of having to deal with her on Bangladesh has been described as an instance of ‘human fly tipping’ by Tasnime Akunjee, the lawyer for Begum’s family.[6] There is much justice in Akunjee’s accusation. Begum’s only connection to Bangladesh is that her parents happen to have been born there. Bangladesh bears no responsibility for Shamima Begum’s behaviour, whereas the UK does. Like it or not, the UK allowed the conditions to arise in which Shamima Begum and many other UK citizens decided to go and join the Islamic State. The UK should take responsibility for the international problems it has contributed to, and should not seek to palm this responsibility off on other counties.

Notes

[1] See: https://www.ejiltalk.org/shamima-begum-may-be-a-bangladeshi-citizen-after-all/

[2] See: https://www.independent.co.uk/news/world/middle-east/shamima-begum-isis-syria-morality-police-suicide-belts-a8869016.html

[3] See: https://www.independent.co.uk/news/world/middle-east/shamima-begum-isis-syria-morality-police-suicide-belts-a8869016.html

[4] See: https://www.bbc.co.uk/news/uk-47276572

[5] See: https://ukhumanrightsblog.com/2019/03/01/shamina-begum-is-stripping-her-of-her-citizenship-the-right-response/

[6] See: https://www.bbc.co.uk/news/world-asia-48154781

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Written by Julian Savulescu, University of Oxford

Caster Semenya is legally female, was from birth raised as female and identifies as a female.
Jon Connell on flickr , CC BY-NC

Middle-distance runner Caster Semenya will need to take hormone-lowering agents, or have surgery, if she wishes to continue her career in her chosen athletic events.

The Court of Arbitration in Sport (CAS) decided last week to uphold a rule requiring athletes with certain forms of what they call “disorders of sex development” (DSD) – more commonly called “intersex” conditions – to lower their testosterone levels in order to still be eligible to compete as women in certain elite races.

The case was brought to CAS by Semenya, as she argued discrimination linked to a 2018 decision preventing some women, including herself, from competing in some female events.

This ruling is flawed. On the basis of science and ethical reasoning, there are ten reasons CAS’s decision does not stand up.

But first let’s take a quick look at the biology involved.

Semenya underwent medical testing in 2009: at the time she was told it was a doping test. The results are confidential, but it has been widely reported that she does have an intersex condition. It seems reasonable to assume she has XY chromosomes, as she is covered by the CAS ruling. Her testosterone levels have not been disclosed, but since the ruling applies to her, they must almost certainly be in what they classify as the “male range”.

According to CAS, the DSD regulations require athletes who want to compete in some female events, who have XY chromosomes and in whom testosterone has a biological effect to reduce their natural testosterone levels to an agreed concentration (below 5 nmol/L).

In women referred to as “46 XY DSD” – the most common intersex condition among female athletes – the presence of a Y chromosome causes the development of testes. These do not descend from the abdomen but do produce testosterone. However the receptors for testosterone are abnormal, with the result that the individual develops as female with a vagina, but no ovaries or uterus. Circulating testosterone may have no biological effect in the case of complete androgen insensitivity syndrome (AIS), or some effect in partial AIS.

Now let’s consider what’s wrong with the ruling.

1. It confuses sex with gender

Sex refers to biology, and gender refers to social role or self-identification. In sport, the definition of male and female used to be based solely on sex. This was assessed anatomically in the 1960s, then by biological tests such as the presence of a structure called a “Barr body” in cells (found only in genetic females), or the gene for testicular development.

Sex determination was abandoned in the 1990s in favour of gender. From the 2000 Sydney Olympics forwards, there were no tests of gender other than self-identification.

Caster Semenya’s gender is uncontroversially female. She is legally female, was from birth raised as female and identifies as a female. So, on the current definition, Semenya is a female. Indeed, there has been no question of her gender.

Sex determination itself is not simple, with chromosomal, gonadal (presence of ovaries or testes), or secondary sex characteristics (physical) all possible definitions that would include or exclude different groups.

The CAS decision relates to “XY females with disorders of sexual development.” XY denotes the male sex chromosomes. This reverts back to the old biological categories. Behind this ruling is the view that Semenya is really a man competing in the women’s category. This view is embodied beautifully in an article entitled “A victory for female athletes everywhere.”

But Semenya is a female by the rules used by the International Association of Athletics Federations (IAAF) – so she should be allowed to compete to the best of her potential in her category.

An alternative is to retreat to the old sex-based definition based on the presence of a Y chromosome. But that carries its own questions on definitions, and also comes at great political and individual cost. It would imply that Semenya is a male with a disorder of sexual development.

2. It discriminates against some forms of hyperandrogenism

Hyperandrogenism is a term used to describe high levels of testosterone.

But the CAS decision does not cover all forms of hyperandrogenism. It only refers to women who have XY chromosomes, such as partial androgen insensitivity syndrome (AIS).

It does not cover a condition called congenital adrenal hyperplasia, which can cause elevated levels of testosterone in women with XX chromosomes.

The implication is that XX females are real women, while those with XY chromosomes are not.

3. It’s based on inadequate science

The significant problem in partial AIS is that although testosterone is elevated in the blood, the receptors for testosterone do not respond to the hormone in the usual way. That is why these individuals have typical external female physical characteristics.

While the testosterone may have some impact on how the body works, it is impossible to quantify how much effect it is having. For example, the difference testosterone makes between males and females in all events is estimated to be up to 12% (all other items being equal). But Semenya’s best time is only 2% faster than her competitors. It is not possible to determine how much of this 2% is due to testosterone, and how much due to other factors about her as an athlete, or her psychology.

The study on which the current decision is based contains only correlations and is flawed in several ways, with a call for its retraction on scientific grounds. It is a single study, conducted by the IAAF and the full data have not been released for independent replication. The sole ground for the claim that Semenya derives “material androgenizing effect” (that is, biological impact) appears to be the “statistical over-representation of female athletes with 46 XY DSD” in the relevant events, as documented in this single, poorly conducted study.

Even if Semenya’s times were to drop after the reduction of testosterone, this could be a side-effect of the drugs used to reduce testosterone, or a function of reductions in mental or physical functions which are themselves legitimate entitlements of the athlete.

Her body has grown up in the presence of a certain level of testosterone of uncertain function. Our bodies are complex, and still poorly understood. A change of this kind may lead to unexpected results. Some of these reductions in functions may be unjust.

No one has given a complete description of the role of testosterone in someone like Semenya, nor how much it ought to be reduced to achieve a supposedly fair outcome. The comparisons are only with XX chromosome women, who have a very different physiology and normal functioning testosterone receptors.

Put simply, a level of 5 nMol/L testosterone is meaningless in Semenya’s case because the receptors are not responding in the usual way. It does not achieve a “level hormonal playing field”.

This is an example of “decimal point science smokescreen.” There is the impression of much greater confidence and sensitivity than the science warrants by appealing to figures with multiple decimal points. The science around testosterone in intersex conditions is poorly understood, let alone as it applies to individuals. This is a level chosen for convenience, not a level that will negate any perceived advantage, but go no further.

4. It’s inconsistent with values of sport and human rights

The self-professed values of sport include the development of one’s own talent .

Yet Semenya is asked to cobble her natural potential as a female competitor. She must take risky biological interventions to reduce her performance.

The United Nations Human Rights Council has stated that the regulations contravene human rights “including the right to equality and non-discrimination […] and full respect for the dignity, bodily integrity and bodily autonomy of the person”.

5. It’s inconsistent with treatment of other athletes

Other women with disorders resulting in higher than expected levels of testosterone, such as congenital adrenal hyperplasia, are not required to reduce their biological advantage.

Competitors with genetic mutations causing increases in red blood cell mass, and who experience enhanced oxygen-carrying capacity as a result, are not required to reduce their biological levels.

The Finnish skier Eero Mäntyranta had a genetic mutation that boosted his red blood cell count by 25-50% (he produced more blood hormone erythropoetin, or EPO). He and won several Olympic medals with this natural form of doping.

6. It’s unjust

The decision is unjust in several ways.

Firstly, it was the IAAF which moved from sex to gender definition of female in 1990s. Semenya has entered competition, trained and competed fairly under the rules. To change them now will be undermine her capacity to compete, work and live, after a lifetime of investment.

If the rules are to be changed, they should not affect athletes who agreed to the current rules, but future athletes. There should be a “grandmother clause” for current athletes, like Semenya or else they are unfairly burdened by the bungles of the IAAF. Even if these rules could be considered justified, they should apply to future athletes as soon as possible after puberty.

Secondly, justice is about giving priority to the worst off in our society – but this ruling adds disadvantage to the worst off. Those with intersex conditions are already stigmatised, discriminated against, in many cases cannot bear children even if they want to. They are the socially disadvantaged. This ruling adds further discrimination and disadvantage.

Thirdly, it sets back integration of intersex people, by stigmatising and marginalising them. We have told them: be yourself, society will accept you. But this sends the message: you are really male, we don’t accept you, you should be castrated.

7. It is an inappropriate reaction to fear of a ‘slippery slope’

At the heart of this decision is the fear of displacement of cisgender women on the podia by increasing debate over transgender athletes. The concern is that if “XY females” are allowed to compete in the female category, formerly male transgender females will follow and rob cisgender women of their medals.

This is a separate issue. Transgender athletes have normal testosterone receptors and would have grown up in the presence of male levels of testosterone acting on normal receptors. Intersex athletes have not grown up in this way and are typically raised as female.

The perceived problem of transgender domination of female sports can be dealt with by separate rules that do not disadvantage existing intersex athletes, though they will raise contentious issues of their own.

8. It is disproportionate and unreasonable

All methods of reducing testosterone involve some risk. For example, the administration of high-dose birth control medication involves risk of clots, including fatal lung clots.

These interventions interfere with a normally functioning organism for highly uncertain benefits to other people. This is disproportionate and unreasonable.

9. It can’t be implemented

The World Medical Association has advised doctors not to administer testosterone-lowering interventions, describing the regulation as “contrary to international medical ethics and human rights standards”.

Their use would be “off label” and is for purposes other than the athlete’s health. The rules involve “strict liability” which means the athlete is responsible for any failure to comply, even if unintentional and outside of the athlete’s control.

10. There are fairer, safer alternatives

I have argued athletes should be able take performance-enhancing substances within the normal physiological range. This would mean cisgender female athletes could take testosterone up to 5 nMol/L. This would reduce any advantage Semenya may have.

It would also deal with the problem that up to 40% of elite athletes are currently doping anyway. Semenya received the London 2012 800m gold medal after the original winner was disqualified for doping. It is highly likely that some of her current competitors are also doping.

No doubt part of the resistance to allowing Semenya to “naturally dope” is that it will encourage other athletes to engage in doping. But they already are, and a better approach to “de-enhancing” Semenya is to regulate and monitor the enhancement of other athletes.

Spectacular fail

Rarely does a public policy fail so spectacularly on so many ethical grounds.

CAS acknowledged that its decision constituted discrimination:

“The panel found that the DSD Regulations are discriminatory but the majority of the panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the restricted events.”

The UNHRC has refuted this claim of proportionality: “there is no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact”.

This ruling is neither necessary, reasonable nor proportionate. It is simply unjust discrimination.

Thanks to Michelle Telfer and Ken Pang for comments

This article builds on arguments presented in the paper Time to re-evaluate gender segregation in athletics?.

Julian Savulescu, Visiting Professor in Biomedical Ethics, Murdoch Children’s Research Institute; Distinguished Visiting Professor in Law, University of Melbourne; Uehiro Chair in Practical Ethics, University of Oxford

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Guest Post: Torbjörn Tännsjö, Kristian Claëson Emeritus Professor of Practical Philosophy

Statistically speaking, women perform less well than men in most sports. Their top results are 10-12 % worse than those of men. If they are to have a chance to compete at the top level, they need a protected space. At least, this has been the received wisdom among sports authorities. The example of Caster Semenya means that this policy has reached the end of the road. What has surfaced is the fact that the idea of a special protected female sphere within sports doesn’t stand up to recent knowledge within medicine and psychology. Caster Semenya is the stone that tipped the scales. The very notion of being female has been put under pressure.

The theory of science teaches us that a fruitful classification must serve an important purpose. In addition to this, the classes used should be mutually exclusive and exhaustive. Every classified individual should belong to one class only and everyone should belong to some class. Historically, we have tended to think that this is true of the classification of human beings into the classes of being female and male. We were wrong. And today it is common knowledge that we were wrong. However, the sports authorities have turned a blind eye to this knowledge.

To break it down in simple terms, there are three main ways of distinguishing between female and male. We may look at sex chromosomes, at external sex organs, or at perceived identity. It is possible to be male in terms of sex chromosomes but female in terms of both external sex organs and psychological identity. Caster Semenya gives witness to this (See Robert Johnson, ‘What No One is Telling You About Caster Semenya: She Has XY Chromosomes’, LetsRun, 2 May 2019). We know also that some individuals with female sex chromosomes (XX) and external female sex organs don’t identify as female. They seek ‘correction’ of their external sex organs. And it is the other way around with some individuals with male sex chromosomes (XY) and male external sex organs. They don’t identify as male and they seek correction of their external sex organs. Even  classification based purely on sex chromosomes is not as simple as one may think. Some individuals lack an X chromosome (X, Turner syndrome) while some have an extra X chromosome (XXY, Klinefelter). And there are other variations as well.

How should sports authorities best handle this? Should they keep turning a blind eye to these facts or should they try to face up to them?

The Semenya case, and the ruling from the Court of Arbitration in Sport (CAS) that Semenya needs to medically lower her testosterone levels if she wants to keep competing in the sporting events she excels in currently, indicates that they wish to keep turning a blind eye to the fact. This is silly. It means that they have maneuvered themselves into a position where they demand from some athletes (Semenya) that they take medication in order to reduce their capacity to excel ,while others are forbidden to use medication in order to enhance their capacity. One reason why the latter (doping) has been forbidden is with reference to the medical hazards associated with the use of medicines for non-medical purposes. But if it is dangerous to use medicine to enhance one’s capacities it is probably also dangerous to use them to lower one’s capacity. Many medical authorities have protested against the ruling from CAS on this basis, including, among others, the Swedish Medical Association. The position now adopted by CAS is stupid. There is no way that it can prevail. But is there any way to meet the challenge from Caster Semenya, if we want to give women a chance of competing and excelling in sport? There is. What is needed is to find a system of classification satisfying the following desiderata?

  1. It consists of classes that are mutually exclusive;
  2. It is complete; and
  3. It renders it possible for women to compete on equal terms with men

I will use the terms ‘women’ and ‘men’ in an ordinary loose sense (for individuals who classify as women or men an all the competing criteria, that is for the majority of human beings).

It seems to me that this should be a feasible task. Step one, then, would be to abolish the segregation between women and men. We need to find other criteria.

It is silly to focus on the distinction between women and men. It is only statistically speaking that women perform worse than men in sports. Some women perform better than most men. However, some men perform better than all women. This is what creates the problem. However, sex per se is of no importance to how an individual performs in sport. This invites the idea that one should discriminate instead on grounds of direct and causal importance to how we perform.

As a matter of fact, if we adopt a charitable interpretation of the ruling of CAS it means that they have taken a first step in this direction. But even the focus on testosterone levels is awkward. First of all, it is controversial whether natural testosterone really gives a competitive edge (see Se Katrina Karkazis and Rebecca Jordan-Young, Debating a testosterone “sex gap”, Science, 22 May 2015, about this). And, more importantly, even if it does, it does so only indirectly. What is of direct importance to how an individual performs are more mundane facts such as how big are her muscles, how well does her blood transport oxygen, how long are her legs or arms, and so forth. But then, why not focus on these directly relevant characteristics rather than on sex, testosterone, or what have you?

This is a true challenge to sports authorities, I concede that, but it is a thrilling one. And it is of note that within some sports some steps in this direction have already been taken. Think of boxing. We do not allow a boxer weighing 105 pounds to box with one weighing 200 pounds.

It is possible to build on these ideas and to construct systems of classification suited to each individual sport, allowing for women (conventionally speaking) to defeat men (again conventionally speaking). Here a lot of research is needed and should be funded.

And as an extra bonus. Today professional sport is the only place where sex discrimination is openly and shamelessly practised. Wouldn’t it be nice if one could get rid of it also in this, its very last stronghold?

Torbjörn Tännsjö

torbjorn.tannsjo@philosophy.su.se
Kristian Claëson Emeritus Professor of Practical Philosophy
Department of Philosophy
Stockholm University
106 91 Stockholm
Sweden

Most recent books,  Taking Life. Three Theories on the Ethics of Killing (Oxford University Press, 2015 and Setting Health-Care Priorities. What Ethical Theories Tell Us (Oxford University Press, forthcoming in June, 2019).

Interview

The article was published in Swedish by the leading Swedish Newspaper Dagens Nyheter on 9 April, 2019.

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Written by Ben Davies

We recently saw a legal challenge to the current UK law that compels fertility clinics to destroy frozen eggs after a decade. According to campaigners, the ten-year limit may have had a rationale when it was instituted, but advances in freezing technology have rendered the limit “arbitrary”. Appeals to arbitrariness often form the basis of moral and political criticisms of policy. Still, we need to be careful in relying on appeals to arbitrariness; it is not clear that arbitrariness is always a moral ‘deal-breaker’.

On the face of it, it seems clear why arbitrary policies are ethically unacceptable. To be arbitrary is to lack basis in good reasons. An appeal against arbitrariness is an appeal to consistency, to the principle that like cases should be treated alike. Arbitrariness may therefore seem to cut against the very root of fairness.

However, there are at least two ways a policy’s arbitrariness is not a knock-down argument for scrapping or changing it. The first of these is when a policy is in fact based on arbitrary grounds, but where there are good alternative grounds for it. Consider, for instance, the furore around a decade ago over the firing of government health advisor David Nutt. Nutt was sacked for contradicting government guidelines over drug safety. Nutt publicly appealed to the idea of arbitrariness in his criticism of government policy. In particular, he said, it was arbitrary to support the continued legality of alcohol and tobacco while opposing the legalisation of less harmful drugs such as cannabis, LSD and ecstasy.

It was certainly worrying for the government to sack an advisor simply for disagreeing with them. And Nutt was right to say that government policy should be based on evidence, and probably wasn’t. So, government policy was arbitrary. But he was wrong to imply that because alcohol is more harmful than LSD, it is essentially arbitrary and thus wrong to keep the former legal while criminalising the other.

The reason is that this arbitrariness is ingrained in society. What we want to know when facing the question of whether to legalise or criminalise a particular drug is not only how it compares to other legal and illegal drugs, but how much good or harm will come from changing its legal status. It is possible, then, that although alcohol is worse than ecstasy, we should keep alcohol legal and ecstasy illegal because:

  • criminalising alcohol would be more dangerous than keeping it legal, and
  • legalising ecstasy would be more dangerous than keeping it illegal.[1]

That the existing legal framework is arbitrary is therefore relevant but not decisive, because that arbitrariness may have given rise to settled expectations that are also relevant (e.g. the expectation of being able to drink alcohol freely). While this argument appeals to consequences, I should note that it’s not supposed to be a purely consequentialist argument. For instance, the fact that an ultimately arbitrary distinction is ingrained in society is not a good argument for keeping it when it involves denial of basic rights.

Here’s the other way a policy can be arbitrary and yet justified. A particular limit (e.g. a speed limit of 20mph outside schools; or an age limit of 18 to vote) can be arbitrary in the sense that any particular limit would be arbitrary, and yet a limit is still required. In this case, the question of whether something is arbitrary is comparison-sensitive. If we ask why the speed limit should be 20mph rather than 100, we can give good reason. But if we ask why it should be 20 rather than 21 or 19, the answer looks less clear. Similarly, we can explain why we should allow people to vote at 18 rather than 5, but may struggle when presented with articulate, intelligent and politically motivated 16-year-olds to say why the limit should not be dropped. Nonetheless, it seems plausible that in both cases we do need some limit. And any limit that attempts to cover a general population will either face exceptions (dropping the voting age to 16 will face some intelligent, articulate 15-year-olds), or be open to symmetrical challenges (just as there is no reason to prefer 20mph to 19mph, so too is there no reason to prefer 19 to 20).

These cases come in two kinds. One is where an easy-to-measure feature tracks, to some degree, a feature that is far more difficult to get a handle on. Age tracks emotional maturity, politically-relevant knowledge and independence, but it does so very imperfectly (some teenagers outdo some adults on all of these). The other is where we have good reason for preferring something in a particular range, but not for preferring any individual within that range. It really is best to have a speed limit of around 20 near schools, but it really does seem impossible to justify 20 precisely.

Faced with such cases, we have three choices. We can scrap the limit altogether as unavoidably arbitrary. In the first kind of case, we can attempt to impose limits based on non-arbitrary features (e.g. replacing a voting age with epistocracy, where voting rights are based on knowledge and intelligence). Or we can accept that while an arbitrary limit is imperfect, it’s the best we’ll get. Like the drugs debate, this latter view requires attention to the pragmatic consequences of adopting any particular policy. For instance, if the idea of epistocracy looks less attractive than moderate arbitrariness (and I think it looks much, much less attractive), we will need to accept that our voting limit is always going to exclude some people unfairly. Nonetheless, we might think that a particular age limit (not necessarily 18) will do the best available job of excluding as few people as possible, without opening us up to a mass of uninformed, clueless voters (as might be the case if we simply dropped an age limit altogether.

These cases point to a further feature that’s required for arbitrariness to be justified (the first being that basic rights are not violated or denied). It is that the area in which an arbitrary limit is in place is something that requires a limit, and that no better criteria for a limit are available.

Strikingly, these three features map onto the case being made against the ten-year storage limit. Campaigners have argued that the limit is not only arbitrary, but arbitrary in a way that violates the right to a family life. And while the individual bringing the challenge accepts the need for a limit of some kind, she argues that this should be in line with the age at which most fertility clinics would not accept patients in any case: 55. Such a limit might itself be arbitrary, if some of those over 55 could have children. But importantly, it might be less arbitrary than the status quo.

[1] Of course, these claims may be false. It may be safer to legalise ecstasy. But the truth of this claim has nothing to do with a comparison with alcohol.

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