Why Do Some Devalued Groups Get More Legal Protections than Others?

Single people have relatively few legal protections. Law professors offer some explanations.

Photo by LOGAN WEAVER on Unsplash

Under the law, only some groups get protected from discrimination. An important question is, who should get protected? What factors should matter? In a 2014 Stanford Law Review article, “Compulsory sexuality,” Elizabeth F. Emens addressed a related question: What factors actually do matter?

Emens found that in antidiscrimination case law, statutes, and scholarly analyses, 8 factors (described below) improve the likelihood that a particular identity group will be protected under antidiscrimination laws.

The following year, Nancy Leong, “Negative identities,” made the case for greater legal protections for four groups: atheists, asexuals (people who do not experience sexual attraction), single people who are permanently single by choice, and the childfree, who are affirmatively choosing not to have children. I’ll focus mostly on her discussions of single people.

Those who are “permanently single by choice,” Leong explains, do not include people who are single but do not want to be. They also exclude people she calls “pre-married.” By that, I think she means “those who are temporarily single by choice but expect that in the future they will not be — for example, those who are taking a break from dating.” The people I call “single at heart” are a more selective group than the permanently single by choice; they are drawn to single life for positive reasons — single life suits them. People who decide to stay single for life only because they are fed up with dating, for example, would not qualify as single at heart. They have to really like being single.

Emens’ 8 Criteria that Contribute to Antidiscrimination Protection

Emens categorized the eight factors as individual, political, relational, and legal.

Individual criteria

1. The identity is based on characteristics that either cannot be changed or characteristics considered too important to ask people to change them.