Law and Philosophy (2015) 34: 485–517  Springer Science+Business Media Dordrecht 2015

DOI 10.1007/s10982-015-9232-2

ADAM HOSEIN

FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW

(Accepted 16 March 2015)

ABSTRACT. In this paper I consider the role of freedom in the justification of

prohibitions on discrimination. As a case study, I focus mainly on U.S. constitu-
tional and employment law and, in particular, restrictions on sex-stereotyping. I
present a new argument that freedom can play at least some important role in
justifying these restrictions. Not just any freedom, I claim: the Millian freedom to
challenge existing stereotypes and contribute to social change. This ‘social change
account’, I argue, can be a useful supplement to the existing theories where their
explanations run out. It also draws support from familiar liberal justifications for
speech and other liberties, and provides an attractive role for the courts.

I. INTRODUCTION

What is the moral basis of anti-discrimination law?1 In this paper I

want to consider the role of freedom in the justification for prohibi-
tions on discrimination. As a case study, I’ll focus mainly on U.S.
constitutional and employment law and, in particular, prohibitions
on sex stereotyping.2,3 (When I discuss what the ‘law’ says or does,
it’s this body of law I’ll have in mind.) I’ll offer a new argument for
the view that freedom can play at least some important role in
justifying these prohibitions. Not just any freedom, I’ll explain: the

1
‘Discrimination’ is sometimes used in a descriptive sense to mean ‘treating people differently’ and
sometimes in a normative sense to mean ‘wrongfully treating people differently’. I’m going to mostly
use ‘differential treatment’ to refer to the former and ask when it constitutes ‘discrimination’, in the
normative sense.
2
I use ‘sex’ here in the technical sense of biological maleness/femaleness, and as distinct from
culturally created traits of masculinity/femininity, or ‘gender’. There can thus be both sex and gender
discrimination. I’ll focus here mainly just on the former.
3
I set aside other legal frameworks. European law, for instance, seems to have less strict prohibi-
tions on using sex stereotypes. In so far as this is so, the paper is an argument for some advantages of
the U.S. approach.
486 ADAM HOSEIN

Millian freedom to challenge existing stereotypes and contribute to

social change.
I proceed as follows. I’ll begin by explaining why some prominent
existing accounts cannot fully explain the prohibitions on sex
stereotyping. In Section II, I show why equality based accounts are
not sufficient. And in Section III, I show why freedom understood as
individual autonomy also cannot be relied upon entirely. In the next
five sections, I develop my alternative freedom based account. In
Section IV, I outline a rough Millian account of a free society. In
Sections V–VIII, I develop the ‘social change account’, showing what
role anti-discrimination law might play in creating a free society, in
particular its role in opening channels for effecting social change.
Section IX discusses some advantages of this approach and responds
to some objections. There will likely remain several important
questions for further work, but I hope to establish the social change
approach as a new and plausible theory that needs to be considered.

II. EQUALITY

One prominent strand in the familiar justifications for anti-dis-

crimination law focuses on equality. In this section I want to con-
sider whether the importance of equality alone can fully explain
prohibitions on sex stereotyping. I’ll consider two major equality-
based theories, which I’ll call the ‘anti-subordination’ account and
the ‘expressive’ account.4
Antidiscrimination law prohibits certain kinds of differential
treatment in the assignment of social goods, employment opportu-
nities, and so on. In particular, it prohibits us from treating people
differently because they are members of certain groups, such as race,
sex, and religious groups. Why is membership in these particular
groups singled out? A familiar answer is that people have historically
been mistreated because of their membership in these groups. For
instance, African Americans in the U.S. were heavily mistreated in
the past because of their race.
4
For reasons of space, I set aside two other important theories: First, Ely’s ‘representation rein-
forcing’ approach (though, as we’ll see in Section IX.C, my own approach attempts to incorporate some
of Ely’s insights). Second, the approach that condemns exploitation of unjust circumstances, as discussed
in Bagenstos, Samuel, ‘’Rational Discrimination’, Accommodation, and the Politics of (Disability) Civil
Rights’, Virginia Law Review 89(5) (2003): pp. 825–923 and Shin, Patrick, ‘Is There a Unitary Concept of
Discrimination?’, in Deborah Hellman and Sophia Moreau (eds.), Philosophical Foundations of Dis-
crimination Law (Oxford, New York: Oxford University Press, 2013), pp. 163–181.
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 487

But why does this history of mistreatment matter? The two

equality theories I am considering each provide an explanation. The
anti-subordination theory emphasizes that groups that have been
historically mistreated occupy a ‘subordinate’ position in society:
they have less economic and political opportunity, lower well-being,
are shunned by the rest of society, and so on. Given this history of
mistreatment, it is especially likely that laws and practices that single
out these racial groups are going to perpetuate or exacerbate sub-
ordination. Thus, anti-discrimination law requires courts to step in
where racial distinctions are being made and make sure that they
aren’t creating subordination.
The expression theory, developed most extensively and rigor-
ously by Deborah Hellman, sets aside the effects of a law or policy
on people’s opportunities, psychological well-being, and so on.5 In-
stead it emphasizes that certain kinds of differential treatment can
express a demeaning message: a message that some people are of less
value than others. Differential treatment is wrong when and because
it conveys to some of the people treated differently that they are of
less value.
Whether any particular instance of differential treatment ex-
presses a message of this kind seems to depend on the social context,
including the history of a society. Take, for instance, segregation in
rail cars. The mere fact that two racial groups were expected to sit in
separate cars does not itself seem to express anything about whether
one group is more valuable than the other, especially if the cars were
otherwise identical. But in the context of U.S. history, where blacks
were often taken to be inferior, and where separation was generally
viewed as a way of protecting whites from dirty or inhuman blacks,
segregation expressed that blacks had lesser worth. Thus, the ex-
pression theory is able to explain why antidiscrimination law pro-
hibits (or requires a strong justification for) treating races differently,
while it allows some other forms of differential treatment; in places
such as the U.S., differential racial treatment is likely to express a
demeaning message towards members of historically subjugated
races.
I cannot give a full discussion of either equality-based theory here,
each of which deserves at least a paper itself. But I want to give some
5
Hellman, Deborah, When is Discrimination Wrong? (Cambridge, MA: Harvard University Press,
2008).
488 ADAM HOSEIN

initial reasons for thinking that neither can fully explain the legal
treatment of sex stereotyping. Consider, first, the expression theory.
Sometimes sex distinctions clearly create a demeaning message. For
instance, if women are given a lesser political voice than men this
expresses that they are inferior, given the history of women being
considered less able to make rational decisions, less worthy of ap-
pearing in public, and so on.
But many of the sex based distinctions ruled out in U.S. consti-
tutional and employment law do not obviously express a demeaning
message towards those treated differently. It may be, of course, that
the law has taken a wrong turn. But the cases I am going to discuss
are foundational ones in U.S. law. And it seems to many people,
including to me, that they were correctly decided, so it’s at least
worth considering what follows if we assume that they were. Con-
sider, for instance, Frontiero v. Richardson.6 The law under review
distinguished between male and female members of the military: It
allowed male members to automatically claim their wives as de-
pendents, but required female members who wanted to claim their
husbands to show that the husband was dependent for more than
half of his support. The rationale for the law was that the spouses of
males in the military were more likely to be genuine dependents,
and so there was less need to investigate those cases to check for
genuine dependency. Administrative ease and savings would be
gained by investigating only the male spouses. The Supreme Court
found the law unconstitutional under the equal protection clause.7
Was Frontiero demeaned? If the law had said, for instance, that
women are incapable of serving in the military, then it would ar-
guably have demeaned her by expressing false claims about female
capacities, claims that have been associated with views about the
inferiority of women. But it doesn’t seem to have expressed any
claim like that. The law recognized that there are women able and
willing to serve in the military and that some of them are the pri-
mary earners in their households. It rested only on the claim that
these women were less likely to have dependent spouses. That claim
doesn’t itself seem to have reflected the idea that women are infe-

6
Frontiero v. Richardson, 411 U.S. 677 (1973).
7
‘[N]o state shall … deny to any person within its jurisdiction the equal protection of the laws’. U.S.
Constitution, Amendment 14.
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 489

rior, just that most people’s marriages at the time, in fact, involved
sex roles where men were more likely to work outside of the home.
These points seem especially plausible when we remind ourselves
of the exact kind of message that Hellman wants to rule out. She is
not suggesting that laws which mildly insult someone are violations
of equality. Rather, the laws have to demean, by expressing that some
people have less value than others. It seems unlikely that the law
considered in Frontiero expressed a message this severe. Also, as
Hellman notes, laws that demean generally involve commands
about how to behave, as with laws prohibiting women from taking
certain kinds of job. But Frontiero and her husband were not being
told how to organize their household, just that they had to offer
some extra proof of how it was in fact organized and this purely for
administrative purposes.8
Perhaps it will be said that I have misread the situation, though.
Maybe given the history of stigma surrounding women in tradi-
tionally ‘male’ gender roles (as with Frontiero) and men in tradi-
tionally ‘female’ roles (as with her husband), any law singling them
out, or requiring them to demonstrate that they really have adopted
those roles, expresses a demeaning message about adopting those
roles. Consider, then, Craig v. Boren, which struck down an Okla-
homa law prohibiting the sale of ‘nonintoxicating’ 3.2 percent beer
to males under the age of 21 and to females under the age of 18.9
The state’s rationale for distinguishing between men and women
was that men between 18 and 21 are more likely to engage in alcohol
related driving offenses.
The law treated differently men and women between the ages of
18 and 21, and the men who were restricted by it successfully sued
the state. Were they demeaned? It was true that young men were
somewhat more likely to engage in driving while intoxicated, and so
on, so it did not make spurious claims about them as a group.10 The
8
Perhaps it will be said that those demeaned were not Frontiero or her husband but other women.
For instance, the female spouses of servicemen may have been demeaned by the assumption that they
were likely to be dependents. And if so, since that assumption was presumably grounded in a broader
assumption about female spouses in general, the law also presumably demeaned women in general. I
discuss a move of this kind shortly when considering Craig. In brief, I think it involves abandoning the
expressive theory in favor of the anti-subordination theory.
9
Craig v. Boren, 429 U.S. 190 (1976).
10
Hellman argues that using even correct statistical generalizations can sometimes demean (When is
Discrimination Wrong?, Chap. 5). I don’t mean to deny this suggestion; I am just claiming that the
particular use of the generalization discussed might not be demeaning.
490 ADAM HOSEIN

best case that the law demeaned the young men is that it connected
them with the broader pejorative stereotype that they are reckless,
and thus expressed that they are reckless. It’s not clear that the law
really did express this: it relied only on the generalization that more
men were reckless, not that all are. But even if it did, calling
someone reckless seems much less severe than saying that they are
of unequal worth. Plainly the law said something very different
about these men than segregation said about black people. The law
may have said something insulting, but it didn’t say something de-
meaning, according to Hellman’s criteria.
Now it might be said that part of why the law didn’t demean the
men is that while recklessness is generally viewed as a bad thing, it is
closely connected to other traits which are often valued in young
men, such as courage, creativity, and so on. For most of U.S. history,
young men and the traits stereotypically associated with them have
been prized, so it seems unlikely that in context the law demeaned
them. This point might be used to make an argument that the law
instead demeaned young women, by disassociating them from these
other traits that have often been valued in U.S. society.
Is this a good approach for the expression theorist to take? Here
are two reasons for thinking otherwise. First, the law was clearly
equivocal in its message about young women: if it said anything
about them, it said at least one positive thing, namely that they are
especially responsible. This makes it very unclear that overall mes-
sage is one of inferiority.
Second, I think that to adopt this approach would be to erase
much of the distinction between the expression theory and anti-
subordination theory. I doubt most people looking at the law would
interpret allowing young women to buy alcohol as expressing that
they are inferior. In so far as there is any temptation to interpret the
law in this way it comes from considering some potential effects of
the law. It derives from the possibility that the law will reinforce the
perception that young women are less reckless, that this will rein-
force some other stereotypes about women, such as that they are
passive, and that this in turn will lead to people viewing women as
less valuable. Really, what we are considering in this case are the
likely ultimate effects of the law on people’s overall perception of
women, and thus women’s social status, rather than any very specific
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 491

message it expresses about the women directly affected by the law. It

is precisely this broader inquiry into a law’s effects that the anti-
subordination approach recommends. So let us turn to that
approach.11
The cases we just looked at illustrate the familiar point that U.S.
constitutional law largely rules out making policy by relying on sex
stereotypes.12 This constraint, I’ve argued, applies even where rely-
ing on these stereotypes doesn’t demean.
Perhaps this is because even if these laws don’t demean the in-
dividual people who are treated differently they still affect the overall
subordination of women as a group. For instance, it might be said, in
defense of the rulings in Frontiero and Craig that they make it less
likely that men and women will be viewed in the light of traditional
views about what they are capable of or how they should act. And
this will be to the long-term benefit of women.
To proceed in this way is to adopt an anti-subordination ap-
proach, which requires courts to consider which laws are really to
the benefit of women in the long-term, in light of what they are
capable of and how they should act. This approach seems quite
attractive where the laws under consideration have effects that are
easy to predict and which are uncontroversially bad for women. For
instance, it would give the courts clear and strong reasons to strike
down laws that formally restrict certain political offices only to men.
But the cases we are considering are not like this. The precise long-
term effects of the rulings we have looked at are far from clear. For
example, perhaps the long-term effect of Craig will be to make
women’s lives better by creating a world where they are allowed to
be more confident and so on. But perhaps social views about young
men and women won’t change at all or even will be reinforced when
people compare more what they consider appropriate behavior for
each sex. And perhaps women will simply be worse-off because of
the higher number of car accidents. So it seems at least far from clear
that the anti-subordination approach would justify the ruling.

11
Important discussions of this approach can be found in Fiss, Owen, ‘Groups and the Equal
Protection Clause’, Philosophy and Public Affairs 5 (1976): pp. 107–177 and Sunstein, Cass, ‘The Anticaste
Principle’, Michigan Law Review 92 (1994): pp. 2410–2455.
12
See, for instance, Case, Mary Anne, ‘The Very Stereotype the Law Condemns: Constitutional Sex
Discrimination Law as a Quest for Perfect Proxies’. In vol. 17 of Civil Rights Litigation and Attorney Fees
Annual Handbook, edited by Steven Saltzman (Madison, WI: Clark Boardman Company, 2001).
492 ADAM HOSEIN

Even if we can justify some of the rulings discussed by appealing

to their long-term effects on group inequality, figuring out whether
such laws are bad for women involves complex causal and norma-
tive judgments. And this makes it troubling for the courts to adopt
the anti-subordination approach for two reasons.
First, there is reason to doubt that courts are well placed to know
what would be best for women in the long-run in these cases. For
instance, suppose that some new legislation makes it easier for men
to gain custody of children (and correspondingly hard for women),
so that there is more balance in caring positions. Does this harm
women overall by reducing their ability to spend time with their
children? Or does it overall benefit them by ensuring that in the long-
run more men will be in caregiving roles; thus reducing the stigma
attached to those roles, allowing women to engage in other ac-
tivities, and so on? These are difficult questions, which involve both
complicated causal issues, about likely overall effects on gender
balance, and disputed normative issues, about the relationship be-
tween mother and child, and so on. Courts have no special expertise
on these difficult questions.
Second, taking this approach seems to require the courts to make
judgments that are not appropriate for the state, especially its un-
elected judiciary, to take a stand on. For instance, it would be
troubling for the state to decide that men and women ought not
involve themselves in traditional marriages, with traditional work
arrangements. These issues are closely connected to people’s most
basic moral and religious views. And even within feminism there are
controversies about, say, whether the complete elimination of sex
roles is necessary (or even desirable). It is a familiar liberal principle
that the state demeans citizens when it usurps their private judgment
by decreeing that one particular basic moral or theological view is
correct and uses it to motivate policy choices.13 The anti-subordi-
nation approach seems to recommend just this sort of usurpation in
cases where the courts would have to settle basic moral and religious
questions in order to apply it.
This concern about relying on controversial judgments applies
even if we think that courts can enforce anti-discrimination law
without themselves getting into the precise details of what a society
13
The classic modern defense of this principle being Rawls, John, Political Liberalism (New York:
Columbia University Press, 1996).
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 493

of equals would look like. It would still be the case that the law
ultimately rests on judgments that are highly controversial, and this
in itself appears to usurp the judgment of ordinary citizens. So, the
anti-subordination approach seems to undermine anti-discrimination
law by suggesting that its prohibitions are grounded in specific views
about what relations between the sexes in our society should look
like.
To conclude this section, I have not been able to offer a full
discussion of equality-based approaches, but I hope to have given
some plausible reasons for thinking that those approaches are in-
sufficient to explain some important aspects of existing sex dis-
crimination law, including protections for men.14

III. FREEDOM AS INDIVIDUAL AUTONOMY

We have seen some examples of how antidiscrimination law gen-

erally prevents the state from relying on sex stereotypes.15 It does the
same in certain private contexts, preventing employers, for instance,
from relying on sex stereotypes in hiring.16 These sex stereotypes
involve claims about differences between men and women, but we
can distinguish several kinds of claims that are ruled out. First, there
are generalizations about how men and women in fact behave, as in
Frontiero. Second, there are generalizations about of what they are
capable. For instance, employers for a construction company are not
allowed to subject women, but not men, to a special strength test, on
the grounds that they are more likely to be too weak for the job.
Third, there are norms about how men and women ought, respec-
tively, to behave. For instance, antidiscrimination law prevents an
employer from firing a woman on the grounds that she is too
masculine in her leadership style.17
How can we justify these prohibitions if we set aside equality?
One natural approach is to focus on the freedom of those who are
14
Again, of course, it is open to the equality theorist to say, contrary to what I’ve been assuming,
that these parts of U.S. law are based on a mistake. But I think it will at least come as a surprise that the
equality theory cannot justify the relevant decisions and it is worth considering, as I do in the rest of this
paper, whether we can give some other plausible justification for them.
15
I say ‘generally’ because there are important exceptions, such as in athletic tournaments. I set
aside these complications for present purposes.
16
The central piece of legislation being Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000E
(2003).
17
As, for instance, in Price Waterhouse v. Hopkins 490 U.S. 228 (1989).
494 ADAM HOSEIN

discriminated against. In particular, it is natural to think individual

autonomy is relevant here, understood as the ability to lead a life of
one’s own making.18 In Craig, for instance, the freedom of young
men to make decisions for themselves about whether to drink al-
cohol was at stake. Antidiscrimination principles in employment law
stop employers from, say, denying a job to someone on the basis of
her sex and thus enable her to pursue an opportunity that would
otherwise be foreclosed.
But in many of the cases where antidiscrimination law steps in, it
does not seem to be protecting very significant individual choices.
The law considered in Frontiero, for instance, did have some impact
on the autonomy of Frontiero and her husband: they had to face a
hurdle that others did not in order to lead their lifestyle. But it was a
hurdle that could be surmounted without affecting their overall lives
all that much. In other contexts, we would not consider it a gross
violation of individual liberty for the state to require people to
demonstrate need in order to receive state benefits (such as, say,
unemployment benefits). There must be something special about the
fact that the hurdle in this case existed because of their respective
sexes.
In her recent defense of an individual autonomy approach, Sophia
Moreau suggests the importance of not having to consider one’s sex
as when making decisions about how to live. Now, there are many
things you have to consider when planning your life, for instance,
your financial means, your abilities, your family connections, and so
on. And each of these restricts your ability to deliberate freely, set-
ting limits on what life you can aspire to. So, Moreau must explain
why anti-discrimination law protects you from having to consider
your sex (or race, etc.) in particular. It can’t just be because sex is
unchosen: so is your height, but even with the protections of anti-
discrimination law you will have to consider your height when de-
ciding whether to become a basketball player.19 Nor can it be be-
cause sex determines much of one’s appearance and is connected to
individual identity: so too does a deep commitment to punk sub-
18
Sophia Moreau has recently offered a sophisticated account that emphasizes individual freedom:
‘What is Discrimination?’ Philosophy and Public Affairs 38(2) (2010): pp. 144–179. Her final account has
many subtleties which I do not address here, but the core value she emphasizes is individual autonomy
as I define it: ‘In a liberal society, each person is entitled to decide for herself what she values and how
she is going to live in light of these values’, p. 147.
19
Moreau suggests this feature and those mentioned in the following sentence, ibid., p. 156.
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 495

culture, but it is not legally actionable discrimination if you are fired

for wearing torn jeans in a corporate environment.
In sum, we need a further theory to tell us why sex distinctions
are singled out even when they have a relatively small impact on
individual decision-making. Thus, the individual autonomy approach
cannot on its own justify all constraints on sex-stereotyping. In what
follows, I want to argue that we can still carve out an important role
for considerations of freedom in the justification of these constraints.
To make this case, I will need to first illustrate, relying on Mill, how
freedom can have an importance that goes beyond protecting the
individual autonomy of current citizens.

IV. MILL ON FREEDOM, AUTONOMY, AND SOCIAL CHANGE

Mill offered several reasons for avoiding governmental interference

in people’s lives.20 One set of reasons concerned protecting indi-
vidual autonomy from encroachment. By not interfering in people’s
choices, the government allows them to pursue a life of their own
making. Another set of reasons concerns social change. Freedom is
important because it creates the best conditions for social change.
Reasons of each kind can be offered in defense of, for instance,
freedom of speech: For the government allowing people to express
themselves unimpeded, refraining from manipulating the content of
public discussion, and so on. Freedom of speech promotes individual
autonomy because it allows individuals to pursue, say, their own
creative goals by making controversial works of art, and so on,
unimpeded. Mill also defends freedom of speech in light of its effects
on social change. By allowing unimpeded discussion, different ideas
will be heard and the better ideas will, in the long run, be more likely
to win out over the less good. The value of this speech goes beyond
its benefit to the individual speaker to all of those who will get to
consider her ideas, to benefit in the future from a society with more
true beliefs, and so on.
We can similarly see two different kinds of Millian justification for
freedom of action. First, when the government allows people to
behave as they choose, even where it disapproves of their actions,

20
Mill, J.S., ‘On Liberty’, in The Basic Writings of John Stuart Mill (New York: Random House 2010).
496 ADAM HOSEIN

those people are able to be more autonomous, following a life of

their own making.
Second, just as freedom of speech means controversial views will
be aired, which challenge existing views, similarly freedom of action
means that atypical (‘eccentric’) ways of behaving will be explored.
Freedom of action allows people to engage in behavior that deviates
from existing expectations and patterns. These ‘experiments in liv-
ing’, can contribute to change in a society by exposing flaws in
existing practices and views, presenting new alternatives that others
may prefer to follow, creating changes in existing customs, and so
on. They might present a new example that was previously disre-
garded or considered impossible. Or they might make attractive a
way of life that had previously been avoided or considered wrongful.
The freedom to contribute to social change in the various ways just
mentioned is distinct from the freedom to simply lead one’s own life
independently: It is the ‘freedom to point out the way’ towards new
practices.21
For Mill, the benefits of these freedoms are ultimately explained
in terms of individual well-being. A free society will ultimately be
one with happier people, who lead more flourishing lives. This is
plausible in light of the difficulty of knowing which views and
practices are best, the contribution of free choice to an individual’s
well-being, and so on.22 His vision of a free society may also be
attractive on other grounds, though. Even if we reject Mill’s wel-
farism, we might still ask what the best way for a society to change
or evolve is. For instance, would it be best for the government to
decide when various practices should be altered and attempt to co-
erce or to steer people away from them? It seems more attractive, in
a democratic society, for social change to occur as a result of deci-
sions made by individual members interacting, exercising their own
reason, and so on. It is a familiar idea that freedom of political
expression, about candidates, policies, and so on, is needed to ensure
that popular opinion in the lead up to an election genuinely reflects

21
Mill, 2010, p. 69. See also Ronald Dworkin’s claim that it is important to be able to influence not
just one’s ‘political environment’ but one’s ‘moral environment’ in ‘Women and Pornography’, The
New York Review of Books 21 (October 1993): pp. 36–42.
22
For one of many familiar welfarist Millian views see, for instance, Raz, Joseph, The Morality of
Freedom (Oxford: Clarendon Press, 1988).
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 497

the views of the people, rather than of the government.23 This is

attractive not just because it may have good effects, but also because
it means a society is determining its own political future. It also
seems attractive that more informal, non-political, opinions evolve in
light of public discussion, disputation, and so on, and that non-
political practices evolve through individuals abandoning old ways
and adopting new ways.24 This is another way in which the people
might be involved in determining their own path, and requires
freedom of non-political expression and action.
In sum, one attractive aspect of a free society is that it does not
restrict individual autonomy, but another attractive aspect is that it
allows individuals to contribute to social change by challenging re-
ceived ideas and behaviors, providing new examples, and so on. My
claim is that this freedom to contribute to social change by engaging
in atypical behavior can play an important role in justifying anti-
discrimination law. I will call this the social change approach.

V. THE POLICIES OF A FREE SOCIETY

Suppose that we care about a free society of the kind described in the
last section. What exactly does this require in policy terms? Mill’s
own proposal was of course the harm principle: roughly, that states
should only restrict individual actions that cause harm to others. But
states frequently regulate behavior in ways that are surely acceptable
but cannot be easily justified by the harm principle.25 For instance,
states define and enforce property rights, ensure the provision of
public goods, and so on. So we need a more fine-grained approach
that just the harm principle, even if we agree with Mill’s basic vision
of a free society. How should we proceed? Let me briefly sketch an
outline of familiar liberal legal structures, which seem to reflect, and
are often defended in light of, Mill’s basic vision (setting aside for the
moment anti-discrimination law itself). I’ll call this the ‘basic liberal
framework’ (BLF).

23
For a classic expression of this view, see Meiklejohn, Alexander, Freedom of Speech and its Relation
to Self-Government (New York: Harper Brothers, 1948).
24
See, for instance, Ronald Dworkin’s claim that it is important to be able to influence not just one’s
‘political environment’ but one’s ‘moral environment’ in ‘Women and Pornography’, The New York
Review of Books 21 (October 1993): pp. 36–42.
25
And indeed in ways that Mill himself thought were acceptable, as David Brink points out in Mill’s
Moral and Political Philosophy: http://plato.stanford.edu/entries/mill-moral-political/.
498 ADAM HOSEIN

The usual lesson drawn from Mill’s discussion is the importance

of protecting a set of basic personal liberties such as freedom of
religion, of sexual choice, of speech, and so on. We also take to be
important basic political and economic freedoms, such as the right to
vote and requirements that political and economic positions be open
to all (in the sense that there are no legal barriers denying anyone
access to these positions). These freedoms allow for individual choice
in areas that are central to their overall direction in life and funda-
mental values. They also allow people to engage in ‘experiments in
living’, which will be of interest to others, in these important areas
without the government restricting them.
It is compatible with protecting these basic liberties that in other
areas we leave the government free to regulate people’s behavior, at
least if it has a compelling justification grounded in the common
good. For instance, it leaves the government free to raise taxes in
order to provide basic services, such as fire protection, and finance an
army for the common defense. The only familiar constraint on these
regulations within the BLF is that the government be somewhat
neutral towards different ways of life in these regulations, so that it
does not steer people towards one practice rather than another. For
instance, it should not attempt to push people towards one religion
rather than another by promoting it, thereby distorting the process
of social change. But it is often compatible with neutrality for the
government to take into account how most people currently live.
For instance, suppose that a local authority is deciding which sports
facilities to put in the local park, such as soccer goals, cricket pitches,
and so on. It seems compatible with neutrality for the authority to
take into account what most people would currently like to play. For
instance, if there is currently much more support for cricket than
soccer, then it seems acceptable for the authority to use more of the
space for cricket pitches than soccer fields; this would not constitute
steering the public, at least on the assumption that the authority
would be willing to revise the space were support for soccer to grow.
The basic approach to private interactions within the BLF is to
have freedom of association. This is only a default; the government
can regulate, say, economic associations for the sake of the common
good (as with, say, minimum wage laws). But the basic rule is to
allow people to engage in whatever economic cooperation they
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 499

please, form cultural associations with whomever they want, and so

on.
Finally, the BLF requires the state to provide people with means
of taking advantage of the various liberties described already. For
instance, it ought to provide citizens with the education needed to
exercise their right to freedom of speech, the resources needed to
pursue their creative projects, and so on.26

VI. SOCIAL CHANGE AND THE BLF

Does the BLF allow sufficient freedom to effect social change? For
instance, does it allow enough opportunity to create changes in
existing sex roles? In his own discussion of women’s freedom and
equality, Mill seems to suggest that the BLF is largely sufficient to
secure freedom (and equality) for women (and men).27 He empha-
sizes the importance of ensuring equal basic personal, economic, and
political liberties for women, such as the right to vote, to hold office,
to be educated, and to work. His focus is on doing away with legal
restrictions on women’s participation in these crucial areas, such as
laws prohibiting them from taking certain jobs. Once these legal
restrictions are abolished, Mill seems to suggest, we will be able to
find out what women are really capable of, see changes in views
about what the best life for a woman is, see shifts in existing sex
roles, and so on.
Let us consider how social change occurs with the BLF. The BLF
does allow significant opportunities to contribute to social change.
Take, say, religion. Protections for speech and religious practices
should be sufficient to allow people who dissent from the dominant
religion to express their reasons for this, gain new adherents, and
so on.
Or suppose that someone thinks soccer is better than cricket,
better for your body, more creative, and so on. In the local authority
example I gave earlier, there are fewer soccer facilities than those for
cricket. But as long as the state does not prohibit soccer, soccer
advocates can still use their freedom of speech to explain its benefits,
26
See, for instance, Rawls’ discussion of how certain resources enhance the ‘worth’ of liberty to an
individual in A Theory of Justice, revised ed. (Cambridge, MA: Harvard University Press, 1999).
27
‘On the Subjection of Women’, in Mill, 2010. More accurately, perhaps, he suggests that as far as
legal structure goes, the BLF is sufficient: I set aside his views on family structure and so on, since our
topic is the law.
500 ADAM HOSEIN

use the facilities there are and their private funds to host games, and
so on. And this should be sufficient to show others the advantages, if
there are any, of the sport; expand the number of people playing it;
and ultimately convince the local authority to increase the soccer
facilities.
Finally, in the area of employment, freedoms of speech, asso-
ciation, and so on will normally be sufficient to change undesirable
practices. Mill writes that:
[F]reedom of individual choice is now known to be the only thing which procures
the adoption of the best processes, and throws each operation into the hands of
those who are best qualified for it. Nobody thinks it necessary to make a law that
only a strong-armed man shall be a blacksmith. Freedom and competition suffice
to make blacksmiths strong-armed men, because the weak armed can earn more
by engaging in occupations for which they are more fit.28

Freedom of economic association, he suggests, will be sufficient,

at least in the long run, to ensure that people get the jobs they are
best qualified for. As long as the government does not legally restrict
what jobs people can take, competition for the best candidates and
jobs, perhaps combined with the freedom to discuss these matters,
will result in efficient job placements. The government does not
need to step in to tell people who to hire, and in fact would probably
do a worse job of deciding who should perform which tasks.

VII. SOCIAL CHANGE AND SEX STEREOTYPES

So there are significant opportunities to effect social change within

the BLF. But antidiscrimination law involves several departures from
the BLF; it takes us beyond the equality of basic liberties, state
neutrality, and absence of legal restrictions on opportunity that the
BLF incorporates. For instance, as I discussed earlier, the law chal-
lenged in Frontiero did not seem to trample on any basic liberties.
Nor was it obviously non-neutral: if the state can consider existing
sporting practices and preferences when regulating for the common
good, why can’t it also consider existing sex-based practices and
preferences? And yet the sex distinction it incorporated was uncon-
stitutional. Similarly, in employment law, antidiscrimination princi-
ples rule out more than just legal restrictions on who may apply for a

28
Mill, 2010, p. 140.
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 501

job. They demand, for instance, that employers not use sex as a
proxy for, say, strength.
The examples just given involve restrictions on the use of de-
scriptive generalizations. What about the use of sex stereotypes that
are prescriptive, such as norms about how women ought to behave?
Anti-discrimination law puts limits on the use of these also. Is this a
departure from the BLF too? Perhaps when we consider state action
the BLF’s requirements of neutrality already rule out to a significant
extent the use of prescriptive sex norms.29 But when we consider
private actors there are clear differences. The BLF permits people to
refuse to associate with others, including in the economic sphere,
because they disapprove of them. For instance, it allows someone to
make hiring decisions by taking into account which behavior they
consider to be cowardly, rude, overly aggressive, and so on. But anti-
discrimination law limits such refusals when they involve sex dis-
tinctions: it does not allow a hiring decision to reflect views about
what is cowardly for a man or overly aggressive for a women. It thus
again involves a departure from the BLF.
Something needs to be said, then, about why antidiscrimination
law puts these tighter restrictions on the state and private actors
where sex distinctions are being used. We saw earlier how equality
theories explain this, in light of the special threat to equality pre-
sented by sex distinctions, and the problems the individual autonomy
approach has with explaining it. Can the social change approach
explain it?
We’ve seen how under the BLF people can exercise the freedom
to challenge existing practices. What I want to suggest is that in
certain areas it seems much harder to exercise that freedom and the
ordinary processes of social change do not function well. In par-
ticular, it seems to me, it is especially difficult to effect changes in
sex-roles.
Considering the history of the United States and other liberal
democracies, it seems clear that there is a long history of bad
practices that differentiated based on sex, including practices that
clearly lacked any rationale, were inefficient, denied people (espe-
cially women) opportunities for self-development, and so on. For
instance, for a long period women were denied the vote and
29
Although even here the requirements of neutrality are not typically enforced by the courts, so
anti-discrimination law involves some departure from the basic framework.
502 ADAM HOSEIN

opportunities for education, and men were excluded almost entirely

from caring for children. These practices are now universally con-
demned in liberal societies. But they were extremely slow to change,
even as people began to challenge them with their voices and be-
havior and even though the practices were manifestly bad.
Now we cannot in general infer from the fact that some indi-
vidual (or group of individuals) tried and failed to encourage a new
practice that they lacked sufficient freedom. The Millian approach
demands only that people have enough of an opportunity to propose
new ways, gain advocates, and so on; not that they actually be
successful. It could be that once other people saw their ‘experiments
in living’ they reflected thoughtfully on them and concluded that
existing views and practices were in fact correct. The experiment
suggested that the old ways were better. But the history of sex-roles
suggests that in this area there were special impediments to inducing
change. For instance, the obvious injustice of denying women the
vote was extremely slow to be corrected. And women were pre-
vented from serving in the military even when there was clear
evidence of their capability.30 Similarly, men were long denied
government support for their child-rearing activities that was offered
to similarly situated women and excluded from careers such as
nursing.31
There have of course been many historical social practices and
policies that now seem to rest on mistakes, including arbitrary and
irrational distinctions, and so on. Take, for instance, the stigma
historically applied to surgeons because of the more physical nature
of their work compared with physicians.32 And the government
frequently makes arbitrary or unmotivated distinctions. Take, say,
the New York law at issue in Rail Express Agency, Inc. v. New York,
which prohibited owners from using trucks to display advertising in
order to prevent distraction to drivers, but exempted advertising
relating to the business of the owner.33 But it is hard to think of areas
of life where there have been arbitrary and unmotivated distinctions
between people that have been as systematic, far-reaching in their
30
For instance, while many women served ably during the Revolutionary War, it was not until 1948
that women were granted permanent status in the U.S. military.
31
See, for instance, Weinberger v. Wisenfeld, 420 U.S. 636 (1975), which ended the practice of granting
federal benefits to widows but not widowers to help care for their children.
32
See Roy Porter, Blood and Guts: A History of Medicine, pp. 34, 110, and 115.
33
Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949).
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 503

effects, and long standing as is the case with respect to sex roles,
except, of course, with respect to other categories that are also
singled out by anti-discrimination law, such as racial groups, for
instance.34
Clearly more historical and sociological work needs to be done to
fully establish the thesis that it especially hard to effect change with
respect to sex roles, but I hope it seems reasonable at least as a
working hypothesis. And there are significant empirical questions,
which I cannot fully consider here, about why challenging sex-roles
has been especially difficult. But some plausible explanations include
the role of prejudice and bias, and the power and advantage that
some men have enjoyed as a result of traditional practices. These
mechanisms can make it hard to produce social change in a variety
of ways. They can make it difficult for people to engage in atypical
behavior for their sex;35 reduce the likelihood that received views
will change even in light of evidence provided by atypical behavior;36
make it difficult to gain enough adherents for new practices to make
them viable;37 and so on.
We have good reason, then, to expect that challenging existing
sex-roles is especially difficult. And this means that while the BLF
may in general give people enough freedom to promote social
change, it may not be sufficient to give people the opportunity to
promote social change with respect to sex-roles.

VIII. ANTIDISCRIMINATION LAW AND OUTLIERS

The forgoing suggests that the BLF does not allow enough oppor-
tunity to challenge existing sex roles. How should we modify it? One
thing we might try to do is to ensure that there is more of a hearing
for anyone who acts in ways that don’t conform to existing as-
sumptions and practices, ‘outliers’ as I’ll call them: women who are

34
I don’t pursue the social change account here with respect to these other parts of anti-dis-
crimination law but I hope to in future work.
35
For instance because of the social pressures to conform.
36
For instance, the effects of prejudice and power may make certain generalizations about how men
and women behave especially resistant to rational revision in light of new evidence. For discussion, see,
for instance, Blum, Lawrence, ‘Stereotypes and Stereotyping: A Moral Analysis’, Philosophical Papers
33(3) (2004): pp. 251–289.
37
For instance, if only very few women are present in a certain workplace, it may be difficult to
create a working environment that is compatible with pregnancy, if only because of the costs to the
business of adapting where numbers are low.
504 ADAM HOSEIN

stronger than most men, men who engage in care work, and so on. I
want to suggest that an important function of antidiscrimination law
is to do just that: to ensure that one can be a visible outlier, and thus
challenge existing practices.38
Consider again U.S. antidiscrimination law, which requires the
state and employers to avoid relying on sex stereotypes, either de-
scriptive or prescriptive. We have seen, for instance, that the state
may not, according to U.S. law, rely on the generalization that
young men are more reckless than young women. Similarly, an
employer may not rely on the generalization that women are unable
to be forceful or ambitious, nor the normative view that it is inap-
propriate for a woman to be forceful or ambitious. An effect of these
prohibitions is to make room for anyone who is an exception to the
stereotype, ensuring that she can engage in her outlier behavior
without any restrictions or disincentives.39 For instance, Frontiero
and her husband were exceptions to the rule that men are generally
the primary earners in a family. The court’s ruling in their favor
changed the cost to them, and others like them, of engaging in their
outlier behavior. Now, to be clear, I don’t mean that the decisions
necessarily made them, or anyone else better off overall. What it did
do was modify the cost of engaging in outlier behavior relative to the
norm; the decision ensured that it would be no more costly to have a
military household with a female primary breadwinner than with a
male primary breadwinner.
Similarly, employers are prohibited from denying a woman a
promotion on the grounds that she is highly assertive, and thus
‘unfeminine’.40 This allows women to increase their visibility in
positions that are associated with traditionally ‘masculine’ traits, and
it allows women to advance who do not fit traditional norms re-
38
Cary Franklin also emphasizes the protection of gender outliers in anti-discrimination law and
suggests that Mill was an important influence on the actual development of the U.S., via his impact on
Ginsburg, Ruth Bader, ‘The Anti-Stereotyping Principe in Constitutional Sex Discrimination Law’, NYU
Law Review 84 (2009): pp. 83–173. But according to Franklin the function of anti-discrimination law is
just to ensure that the state does not coerce or steer people into sex defined roles. We have seen that
this is too weak a claim. Antidiscrimination law does more than just prevent the government from
forcing people into particular sex roles; the BLF would be sufficient for that. Furthermore, Franklin’s
explanation of why, according to Ginsburg’s view and her own, protecting sex-role outliers is important
is that they further the goal of sex equality. But I am arguing that the liberty to challenge existing sex-
roles can be defended independently of equality based rationales for anti-discrimination law.
39
Or, as Julie Suk puts it, it establishes that she is ‘entitled to become an exception to that
generalization’. Suk, Julie, ‘Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination
Law and Work-Family Conflict’, Columbia Law Review 110 (2010): pp. 1–69.
40
See, for instance, Price Waterhouse v. Hopkins 490 U.S. 228 (1989).
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 505

garding female behavior. This in turns allows women to challenge

sex role involving stereotypes and customs. Protections for men
against discrimination similarly ensure that they are able to engage in
outlier behavior.
Now, as I explained above, the idea of a sex stereotype (or at
least the relevant notion of a sex stereotype) includes several dif-
ferent kinds of claim, including generalizations about how women
and men behave and their capacities, and normative claims about
what is appropriate behavior for a women or a man. This means
that there can be different kinds of ‘outliers’ relative to a stereotype
and it is worth pausing here to see how the various kinds of outlier
can all contribute to social change. First, there are men and women
whose behavior may be atypical, such as men who work in pre-
dominantly female fields, like elementary school teaching. Second,
there are men and women whose capacities differ from the average
(or perceived average), such as women who are especially strong.
Thirdly, there are outliers relative to norms about appropriately
masculine or feminine behavior, such as women whose assertive-
ness deviates from the idea that women ought to be more sub-
missive.
Outliers of each kind can help contribute to social change. Those
whose behavior differs from current statistical norms can help reveal
that existing behaviors and practices have flaws that have gone un-
noticed; make people aware of other possibilities and their potential
advantages; and create new practices by gaining adherents for them.
For instance, we might find that having a reasonable proportion of
male elementary school teachers is useful.
Those who differ from generalizations about what men and
women are capable of might show that currently asserted differences
are not correct. And even where the relevant generalization is cor-
rect, outliers can still challenge a range of assumptions. For instance,
men are on average stronger than women, but allowing the non-
average to be visible can help challenge assumptions about the ex-
tent to which men are generally stronger, assumptions about which
men and women are at the upper and lower ends of the curve (such
as assumptions about particular kinds of physique), and assumptions
about the extent to which strength is in fact relevant to particular
practices. And these ability outliers will also often challenge norms of
506 ADAM HOSEIN

masculinity and femininity, such as whether it is appropriate for a

woman to do primarily physical labor.
Finally, those outliers whose actions directly contravene em-
ployer or state views about what is appropriate behavior for a
woman (or man) will provide some opportunity to reconsider
whether that behavior really is inappropriate and whether it is re-
levant to various professions and practices by illuminating what
someone who flouts those norms can achieve and contribute—the
assertive women, say.
As I have emphasized, antidiscrimination law requires the state,
employers, and so on to adopt a very different approach to sex dif-
ferences than they adopt for other differences between people. For
instance, in general, it is perfectly fine for the state to rely on imperfect
generalizations about how people behave in order to make laws that
are economically efficient, satisfy people’s preferences, and so on. For
instance, it is permissible for the state to adopt licensing requirements
for practicing law, medicine, and so on. Having a license is an im-
perfect proxy for being able to perform one of these jobs well. But the
state may permissibly use imperfect generalizations in this case.
By contrast, as we have seen, the use of generalizations about
men and women is much more tightly restricted. And I have now
offered an explanation for this: it is much more important for people
who challenge standard assumptions, practices, and so on with re-
spect to sex to be seen. Because of the difficulty of challenging
existing sex roles, it is more important that a women who is able to
serve in the military gain the chance to do so than it is that unli-
censed physicians be allowed to practice medicine, because the for-
mer will be an important example of what is possible for a woman
and a way of acting that deviates from traditional norms.
Is this view really so different from equality based views? Isn’t the
relevant freedom just the freedom to promote greater sex equality?
One way to justify the protection of outliers would be to argue that
they inevitably move us in the direction of sex equality.41 Perhaps
given the long history of sex inequality, we might expect that nearly
all traditional sex-differentiating assumptions and practices need to
be abolished and we might take as our goal creating a society in
which all such distinctions are abolished. But we need not take such
41
As noted above (fn. 42) Cary Franklin defends a view in this vicinity.
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 507

a strong stand in order to defend the protection of outliers. It may in

fact be quite unclear exactly which of our sex-differentiating as-
sumptions are mistaken and in what way, or it may be undesirable
for other reasons to have courts or the state decide which are
(I discuss this in more detail in Section IX.C below). On the social
change account, we need not decide in advance which assumptions
or practices need to go or which kinds of outlier behavior present a
more desirable alternative. We just need to ensure that outlier in-
dividuals are made visible so that there is an opportunity for change.
Of course, many of the practices and assumptions that outliers
challenge will be associated with historical sex inequality, but the
social change account leaves it to society as a whole to determine
exactly what the best future direction will be.

IX. ADVANTAGES AND OBJECTIONS

We have now seen what the social change justification for anti-
discrimination looks like: anti-discrimination laws protect the free-
dom to challenge existing sex based practices. We have seen how the
theory handles some central distinctions drawn by anti-discrimina-
tion law, such as the difference between using sex and license
holding as proxies. But of course other theories are also capable of
drawing many of these distinctions. I would now like to make clear
some advantages of the theory, at least as a supplement to the
others, and to address some potential objections.

A. Accounting for the Breadth and Limits of Anti-Discrimination Law

The first advantage of the social change account that I want to
elaborate on is that it can help explain why anti-discrimination law
singles out certain kinds of decisions, including each of the following.
First, the social change account can explain why certain decisions
are singled out for protection even if they don’t seem to have a
major direct impact on an individual’s life. According to the account,
those decisions tend to be singled out not simply because of their
impact on individual choice but because of their impact on the
visibility of sex outliers. It can thus explain why, for instance, even a
relatively minor additional test applied to a female applicant for
employment on the basis of her sex would be rejected. The effect on
508 ADAM HOSEIN

the life of the individual woman might be fairly minor—perhaps she

has ample opportunities elsewhere—but the social change approach
takes into account the fact that any such barrier might reduce the
overall visibility of qualified women in the relevant field.
More generally, I have emphasized that anti-discrimination law is
not focused on reducing, in absolute terms, the costs that particular
individuals face in trying to pursue certain paths, but on ensuring
that there are no relative costs to pursuing certain paths as a sex
outlier. The social change approach helps to explain why it is relative
costs that matter, since what is important is not that individuals be
able to do whatever matters most to them but that the activities of
sex outliers are visible relative to that of non-outliers.
Second, it might be said that these relative costs are important not
because they single out particular kinds of activity, but because they put
pressure on people to limit their gender expression itself, making it
more costly to choose paths that contravene standard gender norms.
This may be an important freedom, but the social change account can
explain why some activities that are not themselves especially impor-
tant to gender expression are also protected by anti-discrimination law.
Consider again, for instance, Craig and the young men who wished
to drink low-percentage alcohol. The Craig decision leaves open
whether individuals who have shown themselves to be especially
reckless could be prohibited from drinking or driving or both (at least
as far as anti-discrimination law is concerned). What the court took
issue with was the assumption that young men were more likely to be
reckless than young women: the individuals it protected were the
non-reckless young men, who could be trusted to both drink and
drive. But allowing these non-reckless young men to drink was surely
not itself essential to their gender expression. What it did do, how-
ever, was make the reliability of these outlier young men more visible
to society and the social change account explains why that matters.
Third, while many activities protected by anti-discrimination law
resonate with historical denials of equal worth—such as the exclu-
sion of women from basic rights and obligations of citizenship—the
social change account can explain why the law also protects certain
activities that do not have quite the same symbolic significance.
Take, for instance, the difficulties men may face in gaining compa-
rable support for their child-rearing activities. While it may have
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 509

been in some respects bad for men that they have historically been
less involved in child rearing, the historical basis for this was not the
belief that men had lesser value than women. If anything, the his-
torical lack of support for these activities rested on the thought that
men would typically not need such support because they would be
engaged in activities that were viewed as more worthwhile, such as
work or political participation. The social change account can explain
why all the same men who become primary caregivers should be
supported: as outliers, it is important that these men be relatively
visible so that their chosen path can be fully considered.

B. The Relevance of History

We saw earlier that any theory of antidiscrimination law must ex-
plain why only certain group distinctions are legally problematic. We
also saw that which groups get singled out seems to depend in part
on historical facts about mistreatment. Equality theories are
relatively successful at explaining all of this, while the individual
autonomy approach is less so.
The social change approach can also explain the relevance of
history in this context. Sex distinctions are singled out, according to
the social change approach, because of the long history of difficulty
in challenging sex roles. And the existence of prejudice and
mistreatment is one part of the explanation for why it has been and
is hard to challenge these roles. Thus, the social change approach
explains why the history of prejudice and mistreatment matters.
The social change approach is also able to explain why some
groups that were not historically mistreated or subject to prejudice
are protected. Men, for instance, have been on the whole advantaged
as a group, but it has also been difficult to challenge practices and
assumptions about how they will or should behave. The social
change theory thus explains why, in cases such as Craig, antidis-
crimination law has protected male plaintiffs.

C. Avoiding Strong Judgments About Sex Capacities and Roles

The social change approach does not require the state or, more
specifically, the courts to decide what women (or men) are in fact
510 ADAM HOSEIN

capable of, or how they should act. It just enables outliers to be seen.
To reach its ruling in Frontiero, for instance, the court did not need to
decide that it is possible or desirable to have a household where a
male spouse is dependent upon a female one. It just needed to step in
to ensure that no one faces any extra costs for leading a life of that
kind. Employers are not told that women are able to do certain kinds
physical labor, they are told that they may not assume that women
cannot do such labor, and thus must check if there are women
who can.
There is perhaps a useful parallel between the social change ap-
proach and a familiar approach to constitutional law, namely John
Hart Ely’s ‘representation reinforcement’ approach.42 On Ely’s ap-
proach it is desirable that political decisions are made by democratic
procedures, including majoritarian voting and so on. As a default,
then, changes in the law should occur due to shifts in the views of
the electorate, which are expressed through the normal electoral
process. But sometimes, Ely suggests, the ordinary process of
democratic decision-making is ‘blocked’, for instance because certain
groups find it hard to participate. And in these cases courts may step
in to facilitate political change. Ely’s approach is attractive because it
explains how there can be a role for courts even if we think that the
first best way of making political decisions is through the normal
electoral process.
Similarly, on the social change approach, antidiscrimination law is
necessary (at least in part) because in certain areas the ordinarily
desirable processes of (informal) social change become blocked. In
these areas, potential contributions to the process of change are less
likely to be made or fully considered. The intervention of courts is
justified not to impose some particular view or way of life on society,
but in order to ensure that certain people and practices get a rea-
sonable hearing.
How should the courts decide when to step in? On Ely’s approach
courts identify groups that have clearly been mistreated historically,
such as African Americans, as a guide to whether those groups are
able to fully participate in the political process. Similarly, on the
social change approach, courts only need to rely on uncontroversial
historical facts: In this case, facts showing that social change has been
42
As described in Ely’s Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard
University Press, 1980).
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 511

especially hard to effect in certain areas. The courts need not take a
stand on what exactly future sex-roles should look like (or whether it
would be desirable to have no differences at all on the basis of sex).
They just need to conclude that in this area it is especially important
to reduce the relative costs of engaging in outlier behavior, so that
outliers can contribute to the process of social change.
And courts can do this without knowing whether in any par-
ticular instance the outlier behavior will or should be more widely
adopted. Just as increasing political participation for some groups
will not necessarily mean that their interests always win the day, so
too increasing opportunities for sex outliers does not necessarily
mean that society as a whole will ultimately adopt their ways or find
them acceptable. The Millian court tries to ensure that people can
engage in visible ‘experiments in living’, but it does not dictate how
those experiments will or should ultimately be received. Perhaps it
will be seen that men are not really capable of rearing children alone
successfully, or perhaps few men will be tempted to adopt this way
of life. The social change approach leaves these possibilities open, it
just ensures that there is a reasonable opportunity to present that
way of life as an option.
This approach is attractive for several reasons. First, it is hard to
know what the correct view is about the capabilities and roles of
men and women or what exactly a society of equals should look like.
After a long history of sexism, our views about these things are
likely to be distorted, but it is not obvious in exactly which ways this
is so.
Second, there is no reason to think that courts are likely to be
especially enlightened on these issues. Nothing about the incentives
or capacities of judges makes it the case that they are more likely
than ordinary citizens to have the correct view about sex-based ca-
pacities or roles.
Third, there are more principled reasons for preferring that the
courts, and the state generally, not take a strong stand on these
issues. As discussed earlier, familiar liberal principles suggest that the
state should not take a stand on controversial questions of basic
morality and theology, which are often implicated in discussions
about sex roles. According to this concern, we ought to avoid laws
that can only be defended on sectarian grounds in order to respect
512 ADAM HOSEIN

citizens who do not share those views. Does the social change ac-
count really meet this criterion?
Before proceeding, we need to note that neutrality of this kind
seems to come in degrees. Any law will be supported by some moral
consideration or other, and it seems to be a matter of degree whe-
ther these considerations are clearly part of the core values of a
liberal democracy or rather form part of a particular sectarian view.
Some views are surely more controversial than others. And, corre-
spondingly, some policies will show more or less respect for the
citizens who disagree with them. With this in mind, I will not argue
that the social change account is simply neutral, but rather that to a
significant degree it satisfies the concern about respect that underlies
the familiar neutrality principle.
Several considerations support this claim. First, in so far as the
social change account takes a stand on particular issues of sex-role
differentiation it takes a relatively weak stand. Some of the claims it
rests on are purely descriptive, such as the claim that there have been
widespread mistakes about the respective abilities of men and
women in the past. And its normative claims are mainly about his-
torical practices of sex-differentiation that are now widely con-
demned, such as the denial of the vote to women and the strict
denial of benefits to men who had clear caregiving roles. Of course,
an individual will be more sympathetic to the social change approach
to the extent that she thinks a lot of other past sex-based practices
were significantly mistaken, but plausibly a large number of views
are compatible with the claim that there have been widespread past
mistakes with respect to sex.
Now, someone might say that even though the social change
account only outright condemns these historical practices, it also
suggests a need to test current practices. And many people surely
think that these practices are already well justified and not in need of
further testing. So the social change approach must contradict those
people. This is probably correct, but, and this is the second consid-
eration in favor of the approach, it seems less disrespectful to tra-
ditionalists for the state to express support for testing those practices
than for the state to outright condemn any of those practices. The
social change account does not require the state to express that any
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 513

particular practice should be abolished, only a degree of extra sup-

port for those who might present a challenge to those practices.
Thirdly, the social change approach also expresses respect for those
who would prefer not to see substantial change in current sex roles by
still allowing them to present their case to society. The goal of legal
prohibitions on sex stereotyping allows outliers a greater opportunity
to be seen relative to others. But it is clearly compatible with this that
the state still allow non-outliers the chance to exhibit their own be-
havior, and doing this is a way of expressing respect towards them.
Take, for instance, Wilson v. Southwest Airlines, which considered
an airline policy of hiring only those female flight attendants that its
customers would find sexually attractive.43,44 The Wilson court found
this policy to be discriminatory. But it suggested that a similar policy
for a business whose primary purpose was to sell sexual gratification
rather than transport, such as a Playboy club, would not be illegal.
Why? One justification, the one offered by the court, is that pro-
hibiting Playboy from such hiring practices would be much more
harmful to its business. But this is at most a matter of degree. And
what if the restrictions on Southwest were demonstrated to be fatal
to its business? There still seems to be a more fundamental difference
between the two cases.
The social change approach offers a plausible explanation. On this
approach, the law aims to allow outliers to challenge existing prac-
tices. The Wilson ruling helps allow women to demonstrate in most
areas of work that they are not simply there to function as sex
objects and can perform other roles well. But the social change
approach does not try to eliminate all opportunities to act out other
roles. To apply the same standards to Playboy as to Southwest
would, like banning pornography, make it impossible to express and
act on certain sexualized views about women. The aim of giving
help to sex outliers must be balanced against still allowing opposition
to change to be heard and other ways of life to be followed, even if
we don’t approve of them.

43
517 F. Supp 292 (N.D.Tex.1981).
44
But couldn’t Southwest itself be seen as experimenting, namely by trying a new business practice
of using sex to sell air travel? And doesn’t this mean that it should’ve been better protected on the
Millian account? Even if Southwest was an outlier relative to other businesses at the time, it was clearly
not an outlier in the sex-roles or stereotypes that it was relying on or asking its employees to act out.
Thus, it deserved no special protection on the social change account, unlike its female employees who
were trying to work without having to conform to those roles.
514 ADAM HOSEIN

Fourth, it’s worth noting that even among those who wish to see
substantial change in current sex-based practices there is a good deal
of disagreement about what exactly an ideal society would look like.
For example, there is long-standing disagreement within feminism
between (among other approaches) sameness, difference, and
domination theories.45 The social change approach allows us to
respect the different sides of that agreement by not advocating any
particular ideal. So even to the extent that it rests on significant
agreement about the need to test current practices, it avoids taking a
stand on exactly what superior practices would look like. For
instance, we need not consider whether hospitals will function better
or worse with more male nurses; whether having more male nurses
will free up other jobs for women; and so on. We need only ensure
that the male nurses who can perform well are made visible relative
to their female counterparts.
These considerations suggest that the social change account has at
least some significant advantages in its ability to show respect for
different views about sex roles. A final related issue here is that the
social change approach faces some hard questions about when the
law should cease intervening to bolster certain people’s ability to
contribute to social change. Can this question be resolved neutrally?
Here too people’s views about whether current practices are
justified or not will surely influence their view about how long legal
protection of outliers should continue. But we can at least to some
extent resolve this question independently, for instance by consid-
ering the degree to which social change with respect to sex roles has
been slower than in other areas previously, the degree to which
underlying factors inhibiting such change are still present, and so on
(all issues that, as I said earlier, deserve further attention). To that
extent, then, the social change approach can still be justified from a
relatively neutral standpoint.

D. Protecting Individuals and Protecting Groups

We often think about discrimination as being a wrong done to
particular people who suffer because of a rule or policy: the indi-
viduals denied state benefits because of their race, the woman denied
45
For an overview, see Section II of Hackett, Elizabeth and Haslanger, Sally (eds.), Theorizing
Feminisms: A Reader (Oxford, New York: OUP, 2005).
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 515

a job because of her sex, and so on. And antidiscrimination law

encourages this impression: individual claimants bring suits against
particular parties accused of discrimination, remedies include com-
pensation paid directly to claimants by discriminators, and so on.46
The structure of these cases suggests that they are concerned with
finding whether there has been a wrong done by the alleged dis-
criminator to the individual claimant.
Some commentators, such as Hellman and Moreau, have pro-
posed that a theory of discrimination ought to predict that dis-
crimination is a wrong done to these individuals rather than, say, the
groups that they are members of: Even if denying a women a job
because of her sex is bad for women as a group, it is that particular
woman who suffers the wrong of discrimination.
Does the social change account satisfy this criterion? On the social
change account, the law ought to protect the opportunities of people
who deviate from common sex norms. And the way to ensure that,
it suggests, is to give these individuals a right to be considered on the
basis of their individual qualities, rather than generalizations about
how their group behaves. Thus, an individual woman who does little
caregiving, or is able to balance caregiving with a demanding job,
should be evaluated based on her job performance, rather than the
assumption that most women are primary caregivers and that this
will affect their work. This woman should thus be able to sue if she
is, say, denied a promotion based on generalizations about women
rather than her own job performance.
Thus, the social change account predicts that discrimination cases
should be brought by individual claimants, who should be able to
seek remedies such as reinstatement, compensation, and so on. It is
thus able to predict that the law should have the structure that it
does. But perhaps it will be said that the account still justifies this
structure in too indirect a manner: on the surface, it will be said,
these claimants have the relevant legal protections simply because
we want to protect their rights as individuals. On the social change
account, we give them these legal protections in significant part
because of the broader social significance of their behavior: its po-
tential to challenge existing social norms, and so on. Is the social
change account thus deficient?
46
See Hellman, 2008, pp. 22–25; and Moreau, 2010, p. 146.
516 ADAM HOSEIN

Let me make two points in reply. First, the social change account
is concerned with protecting the rights of individuals. It is just that
the relevant right is not a right to make just any choices about their
own lives, but choices that contribute to social change by providing
examples of exceptional behavior. In the case of sex outliers special
legal protections are required to secure an opportunity they might
not otherwise have.
Second, it is useful to remind ourselves here of the parallel with
protections for speech. We often speak about the moral right to free
speech as a right held by individuals against the government (and
perhaps other private parties). And legal rights to free speech are
held by individuals, who bring suit against the government for
violations. We protect speech in part because individuals have a right
to advance certain interests, in fulfilling personal art projects, say, but
also because we think they should have a right to contribute to
broader social discussion. And we care about the latter, in significant
part, because their contributions are important for society as a
whole, enabling social change created through public discussion. So,
even though we talk, morally and legally, about the speech rights of
individuals we are also clearly happy to accept that those rights are
justified, at least in significant part, by their broader social sig-
nificance. I think we should be equally happy to see individual rights
against discrimination as having an important social grounding also.

X. CONCLUSION

In conclusion, let me bring together the various parts of this dis-

cussion. I have tried to show that some prominent existing theories
of discrimination, grounded in the importance of expressive harms
and protecting individual autonomy cannot fully explain legal re-
strictions on using sex generalizations. The anti-subordination ap-
proach may be able to explain them, but to do so it must
recommend that courts take on questions about the basic morality of
sex-roles that it would be very difficult or impermissible for them (or
any branch of the state) to consider. The restrictions on using sex
stereotypes can be given a plausible justification, I have argued, by
instead focusing on the freedom to effect social change. This ap-
proach can be justified by a plausible Millian account of how social
change should occur in a society and can be deployed without courts
 FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW 517

having to answer fundamental questions about sex roles. This does

not mean that the other theories of discrimination should be aban-
doned, but that the social change approach may be a useful sup-
plement, especially in the area of sex discrimination.

ACKNOWLEDGMENTS

For extremely helpful comments, I am grateful to Larry Alexander, Helena

de Bres, Axel Gosseries, Chris Heathwood, Deborah Hellman, Mike
Huemer, David Mapel, Ruth Rubio Marìn, Carl Knight, Helen Norton,
Kristi Olson, and two anonymous reviewers. Many thanks also to audi-
ences at the Centre for Values, CU Boulder, and the Workshop on
Discrimination, Université catholique de Louvain.

Philosophy Department, University of Colorado,

Boulder, Hellems 167, UCB 232,
Boulder, CO 80309-0232, USA
E-mail: adam.hosein@colorado.edu

Present Address
Visiting Assistant Professor, Harvard University,
Emerson Hall, 25 Quinchy Street,
Cambridge, MA 02138, USA