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
- The identity is based on characteristics that either cannot be changed or characteristics considered too important to ask people to change them.
Nancy Leong believes that single people meet this criterion because “virtually no one believes that someone should be asked to change her marital status against her will.”
True, but I’m still concerned about this criterion. I think it is lorded over single people that if they want all the protections that married people get, they can just get married. Even more demoralizing, too few people believe that anyone really does want to stay single. I think the reasoning goes something like this: “If you want those protections, get married. And don’t tell me you want to stay single. You’ll change your mind. You just haven’t met the right person yet. When you do, then you will get married because you will want to be married and then you will have all those protections. Problem solved!”
I think that the belief that just about everyone will end up marrying is one of the most significant impediments to the mobilization of single people and to any advocacy on their behalf.
- The identity is characterized by a visible trait or distinct behavior.
Leong believes that single people qualify because they are characterized by not partnering or not marrying. That’s not the same level of visibility that other identities have, and single people can try to hide or downplay their status and their desire not to be partnered. I agree with Leong that single people are not disqualified by this criterion, but if single status were more visible, maybe it would be easier to get legal protections. That’s Emens’ argument, I think – that the more criteria a group meets, and the more clearly they meet them, the more likely they are to have legal protections.
Political criteria
- The identity is associated with a salient social group.
Some devalued groups, such as gays and lesbians, have made progress by identifying with other gays and lesbians. They see themselves as part of a group. Recent research shows that single people do, on the average, see themselves as part of a group. But they do not identify as single as much as they identify with people who share their sexual orientation. They also identify with other single people less than coupled people identify with other coupled people.
People who are not single also see single people as a group. But coupled people are seen as more of a coherent group, as are members of sexual minorities.
Here’s why this is important to making progress against discrimination: The more people see singles as part of a group, the less acceptable they think it is to be prejudiced against them.
- The identity is associated with a widely known social movement.
Of all the 8 criteria, this is the one that single people are farthest from meeting, especially in the U.S. We just don’t have much of a social movement for single people, much less a widely known one. People who are not married account for nearly half of all Americans 18 and older, yet we just don’t have the activism of some groups that are far smaller than we are.
That’s a problem. As Emens noted when she included #4 in her list of criteria, “some degree of political power is generally required to obtain legal protection.”
Relational criteria
- Public attitudes toward the group are negative.
- Limiting or demeaning stereotypes are attached to the group.
These two criteria, unfortunately, are easily met by people who are single. Lots of research, including some of my own, has demonstrated negative perceptions and stereotypes of single people (and not just the permanently single by choice). What’s more, it is the single people who like being single who get judged most harshly. We are challenging the cherished belief that just about everyone wants to be coupled and that they are happier that way.
Legal criteria
- The group has a history of explicit or direct legal burdens.
Here is Leong’s summary of just a few of the ways single people are under-protected in the law (as of 2015, when the article was published):
“Title VII does not prohibit workplace discrimination against single people. Likewise, the Fair Housing Act does not include marital status as a protected class. Moreover, in more than half of states, marital status is entirely unprotected in employment and housing—that is, one can be fired or denied housing simply for being single.”
When there are no legal protections in place, single people are at risk for unfair treatment in part because of the prejudices against them. Rental agents, my research demonstrated, are biased against renting to single people, even when the single people are similar to the couples in their employment, their interests, and what they liked about the house.
Singlism is less well known than other isms. My colleagues and I found in our research that many people don’t even realize that they are biased against single people, or they think there’s nothing wrong with that.
- The group has a history of implicit, indirect, or unintended legal burdens.
I think this discussion, from Leong, may count as an example of a way in which single people are indirectly disadvantaged, relative to married people:
“Even efforts to prevent discrimination against unmarried people have focused on equalizing married and unmarried couples, not on equalizing partnered and single people.”
More familiar examples come from the marketplace rather than the law. When couples are charged less per person than single people, whether for memberships, insurance, cultural events, sporting events, or anything else, single people paying full price are subsidizing the discounts enjoyed by the couples. That practice is probably not intended to burden single people, but it does.
[Notes: (1) The opinions expressed here do not represent the official positions of Unmarried Equality. (2) I’ll post all these blog posts at the UE Facebook page; please join our discussions there. (3) For links to previous columns, click here.]
About Bella DePaulo
