A sexual rights puzzle, un-puzzled!

By Steven J. Firth and Ivars Neiders

The debate over sexual rights for the disabled is of profound political, ethical, and philosophical importance. In a recent debate in the Journal of Medical Ethics, Steven J. Firth argues for a welfare founded ‘sex doula’ programme. This blog post stands as a criticism of Di Nucci’s response to that article.

Though he offers a robust and multi-pointed argument, Firth’s paper also supports positive sexual rights for disabled persons. In his response to Firth, Di Nucci defends what he calls his ‘sexual rights puzzle’:

“Universal positive sexual rights are incompatible with universal negative sexual rights. If A has a positive sexual right, then that means that there is at least one person who would lack negative sexual rights. Namely the person who would be supposed to fulfil A’s positive sexual rights. If everybody has negative sexual rights, then everybody has the right to refuse to fulfil A’s sexual needs, but then A has no positive right to sexual pleasure.” (Di Nucci)

Di Nucci attempts to refute Firth’s account of positive sexual rights, holding that positive sexual rights imply positive sexual duties and are “either a category mistake or a normative monstrosity” (Di Nucci). While we agree that positive sexual rights necessarily imply positive sexual duties, we also believe that Di Nucci’s dichotomy operates outside of the framework in which Firth’s argument is set and thus constitutes a false dilemma.

Di Nucci believes that rights are “independent of peoples’ preferences.” (Di Nucci) Firth’s conditional position, however, is more nuanced: he understands sexual rights as part of positive welfare rights (such as those in health care) — and, like other rights in medicine, sexual rights are conditional upon a properly-formed need. Firth is not alone in this sort of thinking, Norman Daniels argues that “A right to health care imposes an obligation on others to assist the right-bearers in obtaining needed and appropriate services” and which takes “into account the competing claims of different types of health-care needs” (Daniels). In line with Daniels, then, Firth demands that disabled people who are unable to satisfy their sexual needs “should be afforded the right to access welfare-funded sex services, and that this right behoves society to provide such services” (Firth).

Not surprisingly, then, Firth admits that access to welfare-funded sex doulas should not be a universal right (i.e. afforded to all persons); instead, access should be afforded conditionally (i.e. to persons who otherwise could not be sexual citizens). To justify his conditional interpretation, Firth notes that many positive rights are incompatible with negative rights — and yet such rights still exist. We concur and argue that certain positive rights (such as health care rights) often conflict simply because such rights are conditional not universal.

To demonstrate the absurdity of Di Nucci’s sexual rights puzzle, it can be reformulated exchanging ‘sexual rights’ for ‘health care rights’:

“If A has a positive health care right, then that means that there is at least one person who would lack negative rights. Namely the person who would be supposed to fulfil A’s positive health care rights. If everybody has negative healthcare rights, then everybody has the right to refuse to fulfil A’s health care needs, but then A has no positive right to health care interventions.”

We think it’s uncontroversial that people do have a positive right to health care services and that no-one is forced to perform random colonoscopies against their will. If, as above, A has a positive sexual right, then it implies only that A should be assisted in obtaining necessary services — it does not imply that at least one person would lack negative rights.

The limpidity of Firth’s point is further advanced through his distinction between the ‘positive right to the funding of services’ and the ‘positive right to the provision of services’. (Firth) Though Di Nucci is aware of Firth’s distinction, he nevertheless dismisses it — seeming to miss the weight of this critical point:

“What if nobody will take my money? Again, the preferences and willingness of potential sexual partners, workers or therapists ought to be irrelevant, otherwise it is no (real) positive right. So it cannot be that I only have the financial right: either I have a right to the provision of sexual services or I do not have the relevant positive sexual right at all.” (Di Nucci)

The health care parallel to this would be:

What if nobody will take my money to perform abdominal surgery? Again, the preferences and willingness of potential health care nurses, doctors, or surgeons, ought to be irrelevant, otherwise it is no (real) positive right. And so on.

Again, Di Nucci’s objection seems impotent, given that many people work in healthcare and surgeons’s negative rights are not impinged by somebody else having a (real) right to their services. Cannot the same go for positive sexual rights? Certainly, a problem may exist if there were no-one to take the money; but as Firth points out, there are people willing to provide such services and there is no reason to say that doing so constitutes a violation of their negative sexual rights.

Despite all of the above, there may still be two ways out for Di Nucci: Firstly, he could hold that conditional positive health care rights don’t exist; and secondly, he could argue that there is a relevant moral difference between ‘sexual rights’ and ‘health care rights’. We consider the former option implausible, and here we find ourselves in good company (Kai Nielsen, Norman Daniels, Amartia Sen, and others); on the latter, we believe that sexual rights for disabled persons are constituents of health care rights in general, and that the discussion of how and why is both relevant and important. For want of space, both of these matters will be more fully engaged through an upcoming paper in which we advance a capabilities approach to a welfare-funded sex doula programme.

 

Competing interests: None. No funding has been received for this work.

Author Institutional Affiliations:

Steven J. Firth, University of Helsinki, Finland

Ivars Neiders, Rīga Stradiņš University, Riga.

Relevant Website for Firth, S. J.: https://stevenfirth.academia.edu/

Twitter:  @shedlock2000

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