Baselining sexual rights as health care rights

By Steven J. Firth and Ivars Neiders

We would both like to thank Ezio Di Nucci for his continued involvement in the matter of sexual rights as health care rights. We cannot stress enough the importance to disabled persons of advancing this debate, and we are certain of Di Nucci’s well-meaning intentions. Moreover, we acknowledge that Di Nucci’s concerns are raised in an effort to cauterise potential harms in other areas — and are, therefore, invaluable discussion.

In his reply to our recent blog post, Di Nucci claims that:

“Medical professionals have duties of care and those duties of care are positive duties of care. Despite well-motivated exceptions such as for example conscientious objection, there is nothing implausible about positive healthcare duties; and those apply even in cases of conscientious objection, as the relevant healthcare institution has a duty to provide a suitable alternative or substitute”.

There are at least two problems with this position: Firstly, he ignores the fact that the duties of medical professionals are conditional upon their choice of profession; and secondly, Di Nucci (as we previously identified here and here) ignores the important distinction between the ‘positive right to the funding of services’ and the ‘positive right to the provision of services’. These two problems are importantly relevant to our argument and cannot be overlooked. The following is a further attempt to clarify our position.

What we argue for is that certain disabled persons should (and ought) have positive rights to the funding of sexual services; such a position is distinct — but functionally identical — to the positive right to sexual services. Our position arises as a consequence of the fact that, without such positive rights, certain disabled persons are denied sexual citizenship — solely in virtue of their impairments. At this point, it should probably be highlighted that health care rights are usually understood to afford an individual’s reaching a baseline  — the barest minimum of which is membership of the human condition. In other words to have a positive right to health care simply means that the state has a duty to organise the health care system such that is accessible to all the citizens who need health care services.

This organisation, of course, is possible only on the condition: that there are certain number of people willing to study medicine, nursing, and other related professions. This medical study comes with the understanding that medical professionals are obligated to perform particular duties that are codified in their professional codes of ethics. Despite well-defined duties, a doctor’s obligation to treat his or her patients springs not from any health care rights, but from a doctor’s professional code of care — a code which has existed long before states recognised positive health care rights. In other words, provided that certain conditions are satisfied (e.g. there is a proper medical need, there are no threats to doctor’s life, etc.), a doctor has a duty to treat the patient whether or not the state recognises patient’s right to health care.

Accordingly, we think that positive sexual rights behove a state to provide some sort of sexual support services to people who, due to their impairments, are otherwise divorced from sexual citizenship. Such services are likely to take different forms depending upon the individual: some people will require support in the form of professional advice or counselling about their sexual needs, while others  will simply benefit from guided use of sexual stimulation tools; severely impaired persons may require more intimate services.[1] It is empirically clear to us that there exists persons who would wave their negative sexual rights to facilitate such services in the same way that there exist doctors who wave their negative health care rights to not perform colonoscopies.

The above said, we also want to emphasise that no professionals involved in the provision of the aforementioned services (social workers, sex advisers, sex doulas) would have a positive duty to provide any such services created by the positive sexual rights of the disabled people. The only duty positively demanded is the duty of the state to fund the services. Professionals working in this field may acquire professional duties as soon as they agree to act in a certain professional role, but akin to physicians, such duties won’t arise from positive sexual rights.

Of course, the above does not respond to Di Nucci’s broader concerns arising from the ‘MeToo’ campaign, nor does it respond to matters where there are violations of the remit of those rights (to both the disabled person and the service provider) — but then there exist many violations in welfare systems that are unintended consequences and perversions of the structure and control mechanisms of the system itself. It would be a supererogative effort to enumerate or anticipate such hypothetical perversions; moreover, the potential existence of such difficulties should not, in this case, negate the move to the provision of state-funded sexual support systems for disabled persons existing below the human condition.

In addition, we have already identified why Di Nucci’s alternatives are inappropriate and (in some cases) offensive to disabled persons. In conclusion, we are mindful of Di Nuccis’s concerns over the potential unintended consequences of positive sexual rights, but believe that the extant harm occasioned to disabled persons in virtue of their being denied sexual citizenship massively exceeds the potential harms from bringing about positive sexual rights as health care rights. Accordingly we are still unconvinced by Di Nucci’s sexual right puzzle. In fact, we believe that there is no such a thing.

[1] The exact nature and remit of these services is interesting, and will be addressed in our upcoming paper A Capabilities Approach to A State-Funded Sex Doula Program


Author Institutional Affiliations:

Steven J. Firth, University of Helsinki, Finland

Ivars Neiders, Rīga Stradiņš University, Riga.

Relevant Website for Firth, S. J.:

Twitter:  @shedlock2000

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

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