Cross post: Why COVID passes are not discriminatory (in the way you think they are)

UK health secretary Sajid Javid’s plans for vaccination requirements for frontline NHS workers has reignited the political and ethical debate over COVID passes.

The requirement constitutes a kind of vaccine pass; without proof of vaccination, healthcare workers are prevented from continuing working in the NHS in a frontline role. Other types of COVID passes have been introduced elsewhere, such as the so-called “green pass” used in many European countries.

COVID passes are certificates intended to limit the access to certain spaces – including, in some cases, the workplace – to people who are vaccinated, or who are thought to have immunity from previous COVID infections, or who have had a recent negative COVID test, or some combination thereof (depending on the type of pass). The aim is to minimise the risk that people in those spaces can infect others.

A common objection to COVID passes is that they are discriminatory because they would create a two-tier society with vaccinated people enjoying more freedom than the unvaccinated.

There are many problems – both practical and ethical – with COVID passes. But discrimination is not one of them if by “discrimination” we merely refer to the differential treatment of people based on their COVID or vaccination status.

The differential treatment is not, in itself, discriminatory. The real ethical issue is about the justifiable limitations of individual freedoms. Discrimination only occurs if the limitations, and the differential treatment that follows, are not justifiable. But that requires addressing a preliminary ethical question on whether such limitations are themselves justifiable. And that question has nothing to do with discrimination.

Pinning down the discrimination objection

Discrimination means, simply, treating people differently – it is a neutral concept. We treat different people differently all the time, and often with good reason. However, the term is most often used with an implicit negative moral connotation, to denote the unfair and unequal treatment of different people or groups. For example, stopping people from accessing certain spaces merely based on their gender, race, disability status, appearance, or hair colour is, in most cases, a form of unfair discrimination. When I talk of “discrimination” here, I mean “unfair discrimination”.

COVID status is different from these cases because, in principle, it expresses a morally relevant feature: the level of risk of harming other people by infecting them with COVID. The risk of harm to others is often a valid justification for limiting the freedom of certain people. Sometimes we do that precisely through some form of pass. For example, driving licences are a type of pass intended to minimise the risk drivers pose on others by ensuring that only those who have met some driving safety standards (by passing a driving test) can drive a car.

If the restriction is justified on independent ethical grounds, such as minimisation of harm, then we normally do not think it is discriminatory. For example, we do not think of driving licences as discriminatory against those who did not pass the test (assuming tests are themselves fair) or who freely chose not to take the test.

The question is always whether the restriction of freedom is justified by the kind of good (for instance, minimisation of the risk of harm) it is meant to bring about. If it is justified, then it makes no sense to say that the restriction is discriminatory, no more than it would make sense to say that driving licences or smoking bans in the workplace are (unfairly) discriminatory against those without a licence or against smokers. The only discrimination occurring would be discrimination between those who abide by a justifiable law and those who do not. But that is not unfair discrimination.

So the real question is whether COVID passes are ethically justified. This is a question about (un)justified limitations of freedoms, not about discrimination.

COVID passes obviously entail limitations of individual freedoms. Depending on how they are implemented, they entail the limitation of the freedom to enjoy certain public spaces, to access public transport, workplaces, and so on. If the limitations of freedom are very large, such as prohibition to work in certain settings if one is not vaccinated, then de facto they become severe limitations of the freedom to refuse the vaccine. It would simply become unreasonable for many people to refuse the vaccine if that entails, say, losing their job.

Whether such limitations are justified depends on how we make tradeoffs between individual freedoms and the goods we want to achieve. It also depends on the risks and benefits for certain groups (for example, the risks of vaccines compared with their benefits for different age groups), as well as on how likely it is that we can achieve those goals.

The latter issue turns on factual considerations, for example, on how effective vaccines are at preventing infection or transmission, or how such effects of the vaccines compare to immunity acquired through infection itself. For instance, if there are good reasons to think that natural immunity is at least as good as vaccine-induced immunity, then there seems to be little justification for “vaccine passes”, as opposed to “immunity passes”.

If, based on all these considerations, COVID passes are ethically justified, then their introduction is not discriminatory – or at least no more than any other justified law is.

However, if COVID passes are not ethically justified, then their introduction is discriminatory because it creates a differential treatment among individuals based on characteristics (such as immunity status, or vaccination status) that, by hypothesis, should not be considered relevant.

But the question is precisely whether they should be considered relevant, that is, whether the hypothesis is correct. And that is not a question about discrimination.