essay about freedom

Freedom Essay for Students and Children

500+ words essay on freedom.

Freedom is something that everybody has heard of but if you ask for its meaning then everyone will give you different meaning. This is so because everyone has a different opinion about freedom. For some freedom means the freedom of going anywhere they like, for some it means to speak up form themselves, and for some, it is liberty of doing anything they like.

Meaning of Freedom

The real meaning of freedom according to books is. Freedom refers to a state of independence where you can do what you like without any restriction by anyone. Moreover, freedom can be called a state of mind where you have the right and freedom of doing what you can think off. Also, you can feel freedom from within.

The Indian Freedom

Indian is a country which was earlier ruled by Britisher and to get rid of these rulers India fight back and earn their freedom. But during this long fight, many people lost their lives and because of the sacrifice of those people and every citizen of the country, India is a free country and the world largest democracy in the world.

Moreover, after independence India become one of those countries who give his citizen some freedom right without and restrictions.

The Indian Freedom Right

India drafted a constitution during the days of struggle with the Britishers and after independence it became applicable. In this constitution, the Indian citizen was given several fundaments right which is applicable to all citizen equally. More importantly, these right are the freedom that the constitution has given to every citizen.

These right are right to equality, right to freedom, right against exploitation, right to freedom of religion¸ culture and educational right, right to constitutional remedies, right to education. All these right give every freedom that they can’t get in any other country.

Value of Freedom

The real value of anything can only be understood by those who have earned it or who have sacrificed their lives for it. Freedom also means liberalization from oppression. It also means the freedom from racism, from harm, from the opposition, from discrimination and many more things.

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Freedom does not mean that you violate others right, it does not mean that you disregard other rights. Moreover, freedom means enchanting the beauty of nature and the environment around us.

The Freedom of Speech

Freedom of speech is the most common and prominent right that every citizen enjoy. Also, it is important because it is essential for the all-over development of the country.

Moreover, it gives way to open debates that helps in the discussion of thought and ideas that are essential for the growth of society.

Besides, this is the only right that links with all the other rights closely. More importantly, it is essential to express one’s view of his/her view about society and other things.

To conclude, we can say that Freedom is not what we think it is. It is a psychological concept everyone has different views on. Similarly, it has a different value for different people. But freedom links with happiness in a broadway.

FAQs on Freedom

Q.1 What is the true meaning of freedom? A.1 Freedom truly means giving equal opportunity to everyone for liberty and pursuit of happiness.

Q.2 What is freedom of expression means? A.2 Freedom of expression means the freedom to express one’s own ideas and opinions through the medium of writing, speech, and other forms of communication without causing any harm to someone’s reputation.

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Freedom Essay

What is Freedom?

If we ever wonder what freedom is, we can look around and see the birds flying high up in the sky. While we in the land work in order to get something, we are actually captivated by that invisible power of want. The former indicates what freedom is while the latter indicates slavery. Well, this is a philosophical justification of what we mean about the term ‘freedom’. The real meaning of freedom is the state of independence where one can do whatever one likes without any restriction by anyone. Moreover, freedom is defined as the state of mind where we have the right and are free to do what we can think of. The main emphasis of freedom is we need to feel freedom from within.

Freedom is a very common term everybody has heard of but if you ask for its exact definition or meaning then it will differ from person to person. For some Freedom may mean the Freedom of going anywhere in the world they would like, for some it means to speak up for themselves and stay independent and positive, and for some, it is the liberty of doing anything whatever they like.

Thus Freedom cannot be contained and given a specific meaning. It differs from every culture, city, and individual. But Freedom in any language or any form totally depends on how any particular person handles the situation and it largely shows the true character of someone.

Different Types of Freedom

Freedom differs from person to person and from every different situation one faces. Hence Freedom can be classified as

Freedom of association.

Freedom of belief.

Freedom of speech.

Freedom to express oneself.

Freedom of the press.

Freedom to choose one's state in life.

Freedom of religion.

Freedom from bondage and slavery.

The list can even continue because every individual's wish and perspective differ.

FAQs on Freedom Essay

1. What is democracy?

Democracy can be defined as - "a government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system". Also, in the words of Abraham Lincoln, democracy is a government that is "of the people, by the people, and for the people.

Democracy is such a form of government where the rulers are being elected by the people. The single chief factor that is common to all democracies is that the government is chosen by the people. The non-democratic government can be the example of Myanmar, where the rulers are not elected by the people.

2. Why is freedom important in our life?

Freedom is very important as this gives us the right to be ourselves, and this helps to work together after maintaining autonomy. Freedom is quite important as the opposite is detrimental to our own well-being and which is inconsistent with our nature.

Freedom is a necessary ingredient for the pursuit of happiness for an individual. Freedom also may be negative or positive – freedom from the constraints on our choices and actions, and the freedom to grow, in order to determine who and what we are.

3. What do you mean by ‘Right to Freedom of Religion’?

We all have the right to freedom of thought, conscience, and also religion. This right includes the freedom to change our religion or belief. We can change our religion either alone or in community with others in public or in private, to manifest this religion or the belief, in worship, in teaching also in practice and observance.

4. Why is Freedom essential in everyone's life?

Freedom is a space or condition in which people will have the sole opportunity to speak, act and pursue their own happiness without unnecessary or any external restrictions which may even involve their own parents, friends, or siblings. Literally no one has the right to get involved in someone else’s life and try to fit in their opinion. Freedom is really important in everyone's life because it leads to enhanced expressions of creativity and original thought, increased productivity in their own view, and overall high quality of life.

5. What does real Freedom actually look like?

Real Freedom is being able to do what you want and whenever you want without someone actually getting involved in your life, being duty and responsibility-free but that doesn't mean being unemployed and this means Freedom to choose your own career and working in your own space with full acknowledgment not really bothered by what other people think, being careless but not being irresponsible about whatever happens in your life by taking full control of your life in your hands, being Spiritually Free is definitely another form of Freedom from certain beliefs and superstitions and finally having enough money to enjoy your life in your taste is the most important form of Freedom.

6. Is Freedom a better option always in every situation?

It is definitely a no because we Indians are brought up in that way that we always tend to be dependent or rely on someone for at least one particular thing in our life. Because we tend to make mistakes and make wrong decisions when we are in an emotional state, hence it is good to have one soul you might go back to often when you are confused. Our parents have brought us up in a way where we are expected to meet certain family standards and social standards so we are bound to get tied under some family emotions most of the time. But it is necessary to decide what is good for you in the end.

7. What does the feeling of finally enjoying Freedom look like?

You will have an ample amount of energy for desiring and taking the required action, and you will finally move whole-heartedly towards your own decision. You feel happy with the Freedom of just existing on this earth itself. You think your individuality has value now among both family and society. It's important that you do not just have the right to do what you want but can also choose happiness over adjustments and don't do what you actually do not want.

8. Why is Freedom of Expression more important than anything else?

Freedom of Expression is the most important human right which is essential for a society to be democratic and equal in serving both men and women or anyone. It enables the free exchange of ideas, opinions, and information and thus allows members of society to form their own opinions on issues of public importance but not only public opinion but also regarding families or any relationship for that matter. Expressing what one feels or what they actually go through is absolutely their own right which no one can ever deny.

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It is hard to find an assignment duller than writing an essay. A freedom essay was my last task that I had performed thanks to lots of online sources and examples given on the Internet. How did I cope with it? I can share my plan of actions with you and I hope it will help to save your time and efforts. When I was a child there was a movie called “Braveheart”. Maybe you haven’t heard of it but people around me adored that cool epic war film with Mel Gibson . There was an episode when during horrible tortures Mel screamed “Freedom!” I thought that he had gone out of his mind. What was the point of being free and fighting for rights when you wouldn’t have a chance to live? When I got the task I decided to watch the whole movie and finally understood that our freedom really matters. That’s why firstly I started to look for the definition of the word “freedom”. I think that the primary thing is to find out what your topic means because if you don’t understand the meaning of the “freedom” concept, you’d hardly succeed. So, freedom is a state of mind, it is a right to make a choice, to be yourself. It depends on many things - the epoch and the culture. I’ve chosen several definitions of the word “freedom”– the philosophical, the psychological and the juridical. I considered my essay just a story. It simplifies the task. I imagined that I had to tell a story, that my assignment wasn’t retelling the collected information. It should be a story on the topic “Freedom”.

Don’t Forget About Boring Rules Which Steal Your Freedom

I wondered why a student hates academic writing. When I had written my first essay I realized why people hate coping with it. My personal experience showed that I didn’t like to write essays because of the following reasons:

It’s hard to concentrate on the topic when you don’t like or even don’t understand it. Firstly, my tutor didn’t allow me to choose the theme to discuss and I had to squeeze ideas from nowhere.
Tutors ask to write about the things THEY want. That’s a horrible mistake because a person has no chance to choose and get creative. There is no freedom.
I tried to get an “A” instead of writing something really qualitative and interesting.
The topic wasn’t catchy and I wanted to get rid of it as soon as possible.
I wanted to post my pictures on Instagram more than to deal with the paper.
I HAD to follow someone’s rules. Format, style, number of pages and words and a great number of other things irritate greatly.

I decided to find the right method of approach. I think that when a person takes a task as something pleasant, not just a duty, it will be much easier to cope with it.

Helpful Tips on Writing a Successful Freedom Essay

I decided to work out my rules which would help to write freely and not fear the task. Here they are! Think that it’s not an essay - just a blog story on freedom. I feel good when posting something. I share my ideas and get rid of the pressure. People love blog stories about freedom. So, imagine that you just develop your website.

Love what you do. Writing about freedom may be funny and bring much pleasure. Find the idea and highlight it the way you want.
Your opinion matters much. You are not to agree with everyone. Rebel and be original. If something about the topic “freedom” surprises you, it can surprise everyone.
Don’t limit yourself. I never depend on one source and don’t stick to one point. First, I investigate the topic and read the FAQ which concerns my essay to get different points of view. I never force myself to write at least something. I take a rest when I need it and write what I love because that’s MY essay.
Quote and respect somebody’s idea. And be sure that you know how to quote a quote . Tutors appreciate when students sound logical and clever. Quotes are not always good. It’s better to get ideas and rewrite them by adding your own opinion. “When I do something I do it for my country and don’t wait for the appraisal.” Sounds familiar? Yes! I just rewrote the idea taken from Kennedy’s speech. That’s how freedom quotes should be paraphrased.
Start with theme essay outline . Continue writing the body and then write the intro and the conclusion. I write the body of my freedom essay, investigate and improve it. I see the strongest point and present it in the intro and highlight it in my freedom essay conclusion. Once I tried to begin with the introduction soon found out that my essay had stronger ideas and, as a result, I had to delete it and write the new one.
Your writing is your freedom - enjoy it. I don’t like to measure myself. If I have something to say right now, I write it. It can be a single sentence or a paragraph. Later I insert it into my essay. I don’t always have time to finish the paper at once. I can write it for many days. One day I feel great and creative and the other day I feel terrible and don’t touch the keyboard. Inspiration is essential.
Don’t deal with taboo issues. Clichés and too complicated language spoil the paper. One more thing to remember is avoiding plagiarism. Once a friend of mine had copied a passage from the work and his paper was banned. I am unique, you are unique, and the freedom essay must be unique as well.
Learn the topic properly. It’s important to find the topic captivating for the society and for you. Freedom is not a limited topic and there are a number of variations.

Below are some topics offered by our creative title generator for essay :

Freedom of conscience
Freedom of worship
Freedom in choosing
Freedom of action
Freedom of speech
Freedom of assembly
Free people.

Now you can see that freedom can be different. Freedom is a part of the human life and you can describe it in different ways.

Freedom of Speech Essay Sample

It’s not easy to write a freedom of speech essay because freedom of speech doesn’t exist. Freedom is an illusion and our politicians try to serve freedom as a main course. People pay much attention to each word being afraid that social networks will ban their “freedom” paper. Every online website must keep within laws that our government creates. Why do people speak of freedom of the press and other freedom issues?

Contact our essay website and free yourself up from academic writing. Our professionals will deliver fantastic result on any topic even if you have 3 hours before the deadline is over.

Daniel Howard is an Essay Writing guru. He helps students create essays that will strike a chord with the readers.

‘Freedom’ Means Something Different to Liberals and Conservatives. Here’s How the Definition Split—And Why That Still Matters

W e tend to think of freedom as an emancipatory ideal—and with good reason. Throughout history, the desire to be free inspired countless marginalized groups to challenge the rule of political and economic elites. Liberty was the watchword of the Atlantic revolutionaries who, at the end of the 18th century, toppled autocratic kings, arrogant elites and ( in Haiti ) slaveholders, thus putting an end to the Old Regime. In the 19th and 20th centuries, Black civil rights activists and feminists fought for the expansion of democracy in the name of freedom, while populists and progressives struggled to put an end to the economic domination of workers.

While these groups had different objectives and ambitions, sometimes putting them at odds with one another, they all agreed that their main goal—freedom—required enhancing the people’s voice in government. When the late Rep. John Lewis called on Americans to “let freedom ring” , he was drawing on this tradition.

But there is another side to the story of freedom as well. Over the past 250 years, the cry for liberty has also been used by conservatives to defend elite interests. In their view, true freedom is not about collective control over government; it consists in the private enjoyment of one’s life and goods. From this perspective, preserving freedom has little to do with making government accountable to the people. Democratically elected majorities, conservatives point out, pose just as much, or even more of a threat to personal security and individual right—especially the right to property—as rapacious kings or greedy elites. This means that freedom can best be preserved by institutions that curb the power of those majorities, or simply by shrinking the sphere of government as much as possible.

This particular way of thinking about freedom was pioneered in the late 18th century by the defenders of the Old Regime. From the 1770s onward, as revolutionaries on both sides of the Atlantic rebelled in the name of liberty, a flood of pamphlets, treatises and newspaper articles appeared with titles such as Some Observations On Liberty , Civil Liberty Asserted or On the Liberty of the Citizen . Their authors vehemently denied that the Atlantic Revolutions would bring greater freedom. As, for instance, the Scottish philosopher Adam Ferguson—a staunch opponent of the American Revolution—explained, liberty consisted in the “security of our rights.” And from that perspective, the American colonists already were free, even though they lacked control over the way in which they were governed. As British subjects, they enjoyed “more security than was ever before enjoyed by any people.” This meant that the colonists’ liberty was best preserved by maintaining the status quo; their attempts to govern themselves could only end in anarchy and mob rule.

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In the course of the 19th century this view became widespread among European elites, who continued to vehemently oppose the advent of democracy. Benjamin Constant, one of Europe’s most celebrated political thinkers, rejected the example of the French revolutionaries, arguing that they had confused liberty with “participation in collective power.” Instead, freedom-lovers should look to the British constitution, where hierarchies were firmly entrenched. Here, Constant claimed, freedom, understood as “peaceful enjoyment and private independence,” was perfectly secure—even though less than five percent of British adults could vote. The Hungarian politician Józseph Eötvös, among many others, agreed. Writing in the wake of the brutally suppressed revolutions that rose against several European monarchies in 1848, he complained that the insurgents, battling for manhood suffrage, had confused liberty with “the principle of the people’s supremacy.” But such confusion could only lead to democratic despotism. True liberty—defined by Eötvös as respect for “well-earned rights”—could best be achieved by limiting state power as much as possible, not by democratization.

In the U.S., conservatives were likewise eager to claim that they, and they alone, were the true defenders of freedom. In the 1790s, some of the more extreme Federalists tried to counter the democratic gains of the preceding decade in the name of liberty. In the view of the staunch Federalist Noah Webster, for instance, it was a mistake to think that “to obtain liberty, and establish a free government, nothing was necessary but to get rid of kings, nobles, and priests.” To preserve true freedom—which Webster defined as the peaceful enjoyment of one’s life and property—popular power instead needed to be curbed, preferably by reserving the Senate for the wealthy. Yet such views were slower to gain traction in the United States than in Europe. To Webster’s dismay, overall, his contemporaries believed that freedom could best be preserved by extending democracy rather than by restricting popular control over government.

But by the end of the 19th century, conservative attempts to reclaim the concept of freedom did catch on. The abolition of slavery, rapid industrialization and mass migration from Europe expanded the agricultural and industrial working classes exponentially, as well as giving them greater political agency. This fueled increasing anxiety about popular government among American elites, who now began to claim that “mass democracy” posed a major threat to liberty, notably the right to property. Francis Parkman, scion of a powerful Boston family, was just one of a growing number of statesmen who raised doubts about the wisdom of universal suffrage, as “the masses of the nation … want equality more than they want liberty.”

William Graham Sumner, an influential Yale professor, likewise spoke for many when he warned of the advent of a new, democratic kind of despotism—a danger that could best be avoided by restricting the sphere of government as much as possible. “ Laissez faire ,” or, in blunt English, “mind your own business,” Sumner concluded, was “the doctrine of liberty.”

Being alert to this history can help us to understand why, today, people can use the same word—“freedom”—to mean two very different things. When conservative politicians like Rand Paul and advocacy groups FreedomWorks or the Federalist Society talk about their love of liberty, they usually mean something very different from civil rights activists like John Lewis—and from the revolutionaries, abolitionists and feminists in whose footsteps Lewis walked. Instead, they are channeling 19th century conservatives like Francis Parkman and William Graham Sumner, who believed that freedom is about protecting property rights—if need be, by obstructing democracy. Hundreds of years later, those two competing views of freedom remain largely unreconcilable.

Annelien de Dijn is the author of Freedom: An Unruly History , available now from Harvard University Press.

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Freedom Essay

500+ words essay on freedom.

We are all familiar with the word ‘freedom’, but you will hear different versions from different people if you ask about it. The definition of freedom varies from person to person. According to some people, freedom means doing something as per their wish; for some people, it means taking a stand for themselves. Ultimately, the fact is that every individual wants to be free and lead their life as per their choice.

Freedom Meaning

Freedom is all about a state of independence where individuals can do what they want without any restrictions. We inherit freedom from the day we are born. It is a quality that each individual possesses. Freedom is a feeling that is felt from within. It can also be defined as a state of mind where you have the right to do what you can think of. The concept of freedom is applied to different aspects of life, and it’s not an absolute term.

All societies describe freedom in their aspect. People of different cultures see freedom in different ways, and accordingly, they enjoy their freedom. We should remember that our freedom should not disregard the rights of others. As good human beings, we should respect others’ freedom and not just live freely. We have to consider the rights and the feelings of people around us when living our freedom.

Creative minds flourish in societies that encourage freedom of opinion, thoughts, beliefs, expression, choice, etc.

Indian Freedom Struggle

The Indian freedom struggle is one of the most significant progress in the history of India. In 1600, the Britishers entered India in the name of trade-specific items like tea, cotton and silk and started ruling our country. Later on, they started ruling our country and made our Indian people their slaves. So, our country has to face the most challenging times to gain independence from British rule. In 1857, the first movement against the British was initiated by Mangal Pandey, an Indian soldier.

India also started various movements against the Britishers to get independence from their rule. One of them includes the Civil Disobedience Movement that started against the British salt monopoly. India could not manufacture salt and had to buy it from the British people by paying huge sums.

After we gained independence, India became one country that gave its citizens some freedom with limited restrictions. Now, India is a free country and the world’s largest democracy.

Freedom of India

During the days of struggle with the Britishers, India drafted a Constitution, which became applicable after independence. Our Constitution provides several freedom rights relevant to all Indian citizens equally. More importantly, these rights are constitutionally equal to every citizen.

Our constitutional rights are the right to equality, freedom, right against exploitation, freedom of religion, culture and educational rights, and right to constitutional remedies.

Importance of Freedom

We can understand the actual value of something when we achieve or earn it by sacrificing our lives. Freedom also means liberalisation from oppression, freedom from racism, opposition, discrimination, and other relatable things. Freedom doesn’t allow us to violate and disregard others’ rights.

The Freedom of Speech

Freedom of Speech is one of the fundamental human rights of an Indian citizen. An individual can convey his emotions, needs, and wants through speech. For a healthy democracy, the right to freedom of speech is essential for the citizens. The framers of the Constitution knew the importance of this right and declared this a Fundamental Right of every Indian citizen. The Constitution of India guarantees the Right to Freedom of Speech and Expression under Article 19(1)(a). It entitles every citizen to express an opinion without fearing repression by the Government.

Conclusion of the Freedom Essay

At last, we can sum it up by saying that freedom is not what we think. It is a concept, and everybody has their opinions about it. If we see the idea of freedom more broadly, it is connected with happiness. Similarly, it has added value for other people.

Students of the CBSE Board can get essays based on different topics, such as Republic Day Essay , from BYJU’S website. They can visit our CBSE Essay page and learn more about essays.

Frequently Asked Questions on Freedom Essay

What were the slogans used during the indian struggle for freedom.

Slogans used during the Indian independence movement include ‘Karo ya Maro’ (Do or die), ‘Inqlaab Zindabad’ (Long live the Revolution) and ‘Vande Mataram’ (Praise to Motherland)

What is the meaning of freedom?

In simple words, freedom means the ability to act or change without constraint and also possess the power to fulfil one’s resources.

What are examples of freedom?

Even the act of letting a bird out of the cage is an example of freedom. A woman regaining her independence after ending a controlling or abusive marriage is another instance of freedom achieved.

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5 Freedom and Equality

Elizabeth Anderson is Arthur F. Thurnau Professor and John Dewey Distinguished University Professor of Philosophy and Women's Studies at the University of Michigan, Ann Arbor.

Published: 05 October 2016
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Freedom and equality are often viewed as conflicting values. But there are at least three conceptions of freedom-negative, positive, and republican-and three conceptions of equality-of standing, esteem, and authority. Libertarians argue that rights to negative liberty override claims to positive liberty. However, a freedom-based defense of private property rights must favor positive over negative freedom. Furthermore, a regime of full contractual alienability of rights-on the priority of negative over republican freedom-is an unstable basis for a free society. To sustain a free society over time, republican liberty must take priority over negative liberty, resulting in a kind of authority egalitarianism. Finally, the chapter discusses how the values of freedom and equality bear on the definition of property rights. The result is a qualified defense of some core features of social democratic orders.

Freedom and equality are typically presented as opposing values. In the quick version of the argument, economic liberty—the freedom to make contracts, acquire property, and exchange goods—upsets substantive economic equality ( Nozick, 2013 : 160–164). Suppose some people sail to an uninhabited island and divide its territory and the provisions they brought into shares of equal value. If they are free to produce, trade, and accumulate property, some would rapidly get richer than others due to good luck and good choices, while others would become poor due to bad luck and bad choices. Any attempt to enforce strict material equality across large populations under modern economic conditions would require a totalitarian state. Gracchus Babeuf, a radical of the French Revolution, and the first modern advocate of strict material equality under state communism, understood this perfectly. He saw that the only way to ensure strict material equality was for the state to run society like an army—to control all property and production, assign everyone to their jobs, and control everyone’s thoughts (lest some get the ideas that they deserve more than others, or that they should be free to choose their own way of life) ( Babeuf, 1967 ; Buonarroti, 1836 ). He thought such equality was worth the sacrifice of freedom. Few who have actually lived under communism agree.

While the quick argument is true and of great historical importance, it does not address moderate types of egalitarianism. Virtually no one today advocates strict material equality. Social democrats, particularly in northern Europe, embraced private property and extensive markets well before the collapse of communism. Friedrich Hayek (1944) argued that social democratic experiments would lead societies down the slippery slope to totalitarianism. His prediction failed: moderate egalitarianism of the social democratic type has proved compatible with democracy, extensive civil liberties, and substantial if constrained market freedoms.

To make progress on the question of normative trade-offs between freedom and equality within the range of options for political economy credibly on the table, we must clarify our concepts. There are at least three conceptions of freedom—negative, positive, and republican—and three conceptions of equality—of standing, esteem, and authority. Republican freedom requires extensive authority egalitarianism. To block arguments that freedom requires substantial material equality, libertarians typically argue that rights to negative liberty override or constrain claims to positive liberty. This chapter will argue that, to the extent that libertarians want to support private property rights in terms of the importance of freedom to individuals, this strategy fails, because the freedom-based defense of private property rights depends on giving priority to positive or republican over negative freedom. Next, it is argued that the core rationale for inalienable rights depends on considerations of republican freedom. A regime of full contractual alienability of rights—on the priority of negative over republican freedom—is an unstable basis for a free society. It tends to shrink the domains in which individuals interact as free and independent persons, and expand the domains in which they interact on terms of domination and subordination. To sustain a free society over time, we should accept the priority of republican over negative liberty. This is to endorse a kind of authority egalitarianism. The chapter concludes with some reflections on how the values of freedom and equality bear on the definition of property rights. The result will be a qualified defense of some core features of social democratic orders.

1. Conceptions of Freedom and Equality

Let us distinguish three conceptions of freedom: negative freedom (noninterference), positive freedom (opportunities), and republican freedom (nondomination). Sarah has negative freedom if no one interferes with her actions. She has positive freedom if she has a rich set of opportunities effectively accessible to her. She has republican freedom if she is not dominated by another person—not subject to another’s arbitrary and unaccountable will.

These three conceptions of freedom are logically distinct. They are also somewhat causally independent: one can enjoy high degrees of any two of these freedoms at substantial cost to the third. Lakshmi could have perfect negative and republican freedom on an island in which she is the only inhabitant. No one else would be interfering with her actions or dominating her. She would have little positive freedom, however, since most opportunities are generated in society with others. Maria could have high degrees of negative and positive freedom while lacking republican freedom. She could be the favorite of an indulgent king, who showers her with wealth and privileges, and permits her to say and do what she likes—but who could throw her in his dungeon at his whim. Finally, Sven could have high degrees of positive and republican freedom while being subject to many constraints on his negative liberty. He could reside in an advanced social democratic state such as Norway, where interpersonal authority is constrained by the rule of law (so he is not subject to anyone’s arbitrary will), and a rich set of opportunities is available to all, at the cost of substantial negative liberty constraints through high levels of taxation and economic regulation.

Traditionally, most discussions of freedom focused on the contrast between negative and positive freedom. The recent revival of the republican conception of freedom as nondomination adds an important dimension to thinking about the lived experience of unfreedom and the social conditions of freedom. Pettit (1997 : 22–25) stresses the contrast between negative and republican freedom in the case where a dominator could but chooses not to interfere with subordinates. He argues that such vulnerability to interference can make subordinates submissive, self-censoring, and sycophantic toward their superiors. It is also important to consider some differences between negative liberty constraints imposed by a dominating power and those imposed in accordance with the rule of law by a liberal democratic authority. Domination is often personal: think of the husband under the law of coverture or the violent husband today, the slaveholder, the bullying, micromanaging boss. Rule-of-law constraints are impersonal and of general applicability. This arm’s-length character of the rule of law often relieves people of the humiliation of submission to domination, since they know “it’s not about me.” Dominating interference can arrive unannounced. Rule-of-law constraints must be publicized in advance, giving people time to figure out how to pursue their projects in ways that avoid interference. Dominating interference does not have to justify itself. Rule-of-law constraints in a liberal democratic order must appeal to public reasons, which limits the constraints that can be imposed. Dominating interference is unaccountable. Applied rule-of-law constraints in a democracy are subject to appeal before an impartial adjudicator, and those who enact them can be removed from power by those to whom the constraints apply.

These remarks apply to ideal types only. Actually existing formally liberal democratic regimes have devised innumerable ways to exercise domination under the guise of the rule of law. It is possible to devise a set of impersonal, generally applicable, publicized laws that regulate conduct so minutely that almost anyone innocently going about their business could be found to have run afoul of one of them. Such is the case with traffic laws in the United States. If enforcement action on the trivial infringements were limited to mere warnings or token fines, as in police stops to warn drivers that their tail lights are broken, they could be a service to the drivers and others on the road. Often, however, such traffic stops are a mere pretext for police exercise of arbitrary power to harass, intimidate, invade privacy, and seize people’s property without due process of law. 1 In other cases, impersonal rule-of-law regulations impose constraints so out of touch with local conditions, with such draconian penalties for noncompliance, that enforcement amounts to domination. Such is the case with the high-stakes testing regime imposed by the federal government under No Child Left Behind, with uniform arbitrary progress goals foisted on local school districts without any empirical research demonstrating that these goals were feasible. In some cases, the NCLB regime has created a culture of intimidation and cheating ( Aviv, 2014 ). This is a centralized planning regime akin to the five-year plans of communist states. In both cases, the imposition of goals plucked out of thin air in combination with severe sanctions is premised on the assumption that lack of sufficient will is the primary obstacle to progress—an assumption that rationalizes domination of those required to meet the goals.

We should be skeptical of attempts to operationalize the conditions for nondomination in formal terms. Powerful agents are constantly devising ways to skirt around formal constraints to dominate others. Republican freedom is a sociologically complex condition not easily encapsulated in any simple set of necessary and sufficient conditions, nor easily realized through any particular set of laws.

Turn now to equality. In other work, I have argued that the conceptions of equality relevant for political purposes are relational: they characterize the types of social relations in which members of society stand to one another ( Anderson, 2012b ; Anderson, 2012a ). Relational equality is opposed to social hierarchy. Three types of hierarchy—of standing, esteem, and authority—are particularly important. In hierarchies of standing, agents (including the state) count the interests of superiors highly, and the interests of inferiors for little or nothing. In hierarchies of esteem, some groups monopolize esteem and stigmatize their inferiors. In hierarchies of authority, dominant agents issue arbitrary and unaccountable commands to subordinates, who must obey on pain of sanctions. Egalitarians oppose such hierarchies and aim to replace them with institutions in which persons relate to one another as equals. For example, they want members of society to be treated as equals by the state and in institutions of civil society (standing); to be recognized as bearing equal dignity and respect (esteem); to have equal votes and access to political participation in democratic states (authority). Each of these conceptions of relational equality is complex and implicates numerous features of the social setting.

These three types of hierarchy usually reinforce each other. Groups that exercise power over others tend to enjoy higher esteem, and often use their power to exact special solicitude for their interests from others. Sometimes they come apart. Upper-class married women under the law of coverture enjoyed high esteem and standing, but had little authority and were subordinate to their husbands and to men generally. Some ethnic minorities, such as Chinese Malaysians, enjoy high standing and authority through their ownership and control of most businesses in Malaysia, but are racially stigmatized in Malaysian society.

Given this array of distinct conceptions of freedom and equality, it is harder to argue that freedom and equality are structurally opposed. There is a deep affinity between republican freedom as nondomination and authority egalitarianism. These are not conceptually identical. Domination can be realized in an isolated, transient interpersonal case (consider a kidnapper and his victim). Authoritarian hierarchy is institutionalized, enduring, and group-based. Yet authority hierarchies cause the most important infringements of republican freedom. Historically, the radical republican tradition, from the Levellers to the radical wing of the Republican party through Reconstruction, saw the two causes of freedom and equality as united: to be free was to not be subject to the arbitrary will of others. This required elimination of the authoritarian powers of dominant classes, whether of the king, feudal landlords, or slaveholders. Republican freedom for all is incompatible with authoritarian hierarchy and hence requires some form of authority egalitarianism.

Authority egalitarianism so dominates public discourse in contemporary liberal democracies that few people openly reject it. However, conservatives have traditionally supported authority hierarchy, and continue to do so today, while often publicizing their views in other terms. For example, conservatives tend to defend expansive discretionary powers of police over suspects and employers over workers, as well as policies that reinforce race, class, and gender hierarchies, such as restrictions on voting, reproductive freedom, and access to the courts.

The connections between relational equality and conventional ideas of equality in terms of the distribution of income and wealth are mainly causal. Esteem egalitarians worry that great economic inequality will cause the poor to be stigmatized and the rich glorified simply for their wealth. Authority egalitarians worry that too much wealth inequality empowers the rich to turn the state into a plutocracy. This radical republican objection to wealth inequality is distinct from contemporary notions of distributive justice, which focus on the ideas that unequal distributions are unfair, and that redistribution can enhance the consumption opportunities of the less well off. 2 The latter notions are the concern of standing egalitarianism. Concern for distributive justice—specifically, how the rules that determine the fair division of gains from social cooperation should be designed—can be cast in terms of the question: what rules would free people of equal standing choose, with an eye to also sustaining their equal social relations? The concern to choose principles that sustain relations of equal standing is partly causal and partly constitutive. In a contractualist framework, principles of distributive justice for economic goods constrain the choice of regulative rules of property, contract, the system of money and banking, and so forth, and do not directly determine outcomes ( Rawls, 1999 : 47–49, 73–76). From this point of view, certain principles, such as equality of rights to own property and make contracts, are constitutive of equal standing.

Absent from this list of conceptions of equality is any notion of equality considered as a bare pattern in the distribution of goods, independent of how those goods were brought about, the social relations through which they came to be possessed, or the social relations they tend to cause. Some people think that it is a bad thing if one person is worse off than another due to sheer luck ( Arneson, 2000 ; Temkin, 2003 ). I do not share this intuition. Suppose a temperamentally happy baby is born, and then another is born that is even happier. The first is now worse off than the second, through sheer luck. This fact is no injustice and harms no one’s interests. Nor does it make the world a worse place. Even if it did, it would still be irrelevant in a liberal political order, as concern for the value of the world apart from any connection to human welfare, interests, or freedom fails even the most lax standard of liberal neutrality.

2. A Freedom-based Justification of Property Must Favor Positive or Republican over Negative Freedom

The conventional debate about freedom and distributive equality is cast in terms of the relative priority of negative and positive freedom. If negative liberty, as embodied in property rights, trumps positive freedom, then taxation for purposes of redistribution of income and wealth is unjust ( Nozick, 2013 : 30–34, 172–173; Mack, 2009 ).

One way to motivate the priority of negative freedom is to stress the normative difference between constraints against infringing others’ liberties, which do not require anyone to do anything (merely to refrain from acting in certain ways), and positive requirements to supply others with goods, which carry the taint of forced labor. This argument applies at most to taxation of labor income. Nozick (2013 : 169) tacitly acknowledged this point in claiming that “Taxation of earnings from labor is on a par with forced labor” (emphasis added). People receive passive income (such as interest, mineral royalties, capital gains, land rents, and bequests) without lifting a finger, so taxation of or limitations on such income does not amount to forcing them to work for others. Such taxation is the traditional left-libertarian strategy for pursuing distributive equality consistent with negative liberty constraints. Land and natural resource taxes can be justified in Lockean terms, as respecting the property rights in the commons of those who lost access to privately appropriated land. Paine’s classic version of this argument (1796) claims that Lockean property rights should be unbundled: just appropriation entitles owners to use the land and exclude others, but not to 100 percent of the income from land rents. Citizens generally retain rights to part of that income stream. This grounds a moderate egalitarianism without resort to the extravagant premises needed to support a more demanding distributive equality in libertarian terms, as for instance in Otsuka (1998) .

Arguments for the priority of negative over positive freedom with respect to property rights run into more fundamental difficulties. A regime of perfect negative freedom with respect to property is one of Hohfeldian privileges only, not of rights. 3 A negative liberty is a privilege to act in some way without state interference or liability for damages to another for the way one acts. The correlate to A’s privilege is that others lack any right to demand state assistance in constraining A’s liberty to act in that way. There is nothing conceptually incoherent in a situation where multiple persons have a privilege with respect to the same rival good: consider the rules of basketball, which permit members of either team to compete for possession of the ball, and even to “steal” the ball from opponents. If the other team exercises its liberty to steal the ball, the original possessor cannot appeal to the referee to get it back.

No sound argument for a regime of property rights can rely on considerations of negative liberty alone. Rights entail that others have correlative duties. To have a property right to something is to have a claim against others, enforceable by the state, that they not act in particular ways with respect to that thing. Property rights, by definition, are massive constraints on negative liberty: to secure the right of a single individual owner to some property, the negative liberty of everyone else—billions of people—must be constrained. Judged by a metric of negative liberty alone, recognition of property rights inherently amounts to a massive net loss of total negative freedom. The argument applies equally well to rights in one’s person, showing again the inability of considerations of negative liberty alone to ground rights. “It is impossible to create rights, to impose obligations, to protect the person, life, reputation, property, subsistence, or liberty itself, but at the expense of liberty” ( Bentham, 1838–1843 : I.1, 301).

What could justify this gigantic net loss of negative liberty? If we want to defend this loss as a net gain in overall freedom, we must do so by appealing to one of the other conceptions of freedom—positive freedom, or republican freedom. Excellent arguments can be provided to defend private property rights in terms of positive freedom. Someone who has invested their labor in some external good with the aim of creating something worth more than the original raw materials has a vital interest in assurance that they will have effective access to this good in the future. Such assurance requires the state’s assistance in securing that good against others’ negative liberty interest in taking possession of it. To have a claim to the state’s assistance in securing effective access to a good, against others’ negative liberty interests in it, is to have a right to positive freedom .

Considerations of republican freedom also supply excellent arguments for private property. In a system of privileges alone, contests over possession of external objects would be settled in the interests of the stronger parties. Because individuals need access to external goods to survive, the stronger could then condition others’ access on their subjection to the possessors’ arbitrary will. Only a system of private property rights can protect the weaker from domination by the stronger. The republican argument for rights in one’s own body follows even more immediately from such considerations, since to be an object of others’ possession is per se to be dominated by them.

Thus, there are impeccable freedom-based arguments for individual property rights. But they depend on treating individuals’ interests in either positive or republican freedom as overriding others’ negative liberty interests. Against this, libertarians such as Nozick could argue that the proper conception of negative liberty is a moralized one, such that interference with others’ negative freedom does not count as an infringement of liberty unless it is unjust . Such a moralized view of liberty is implicit in Nozick’s moralized accounts of coercion and voluntariness (1969: 450; 2013: 262–263). Hence, no genuine sacrifice of others’ negative liberty is involved in establishing a just system of property rights.

In response, we must consider what could justify claims to negative liberty rights in property. The problem arises with special clarity once we consider the pervasiveness of prima facie conflicts of property rights, as in cases of externalities settled by tort law or land use regulation. Whenever prima facie negative liberty rights conflict, we must decide between them either by weighing their value in terms of non-liberty considerations, or in terms of some other conception of freedom—positive or republican. If we appeal to considerations other than freedom, we treat freedom as subordinate to other values. For example, desert-based arguments for property rights, which point to the fact that the individual created the object of property, or added value to it through their labor—treat freedom as subordinate to the social goal of rewarding people according to their just deserts. Similarly, Nozick’s resolution of conflicting claims in terms of a moralized notion of negative liberty covertly imports utilitarian considerations to do the needed normative work ( Fried, 2011 ). To base the justification of property rights on considerations of freedom itself, we must regard freedom as a value or interest and not immediately as a right. That is, we must regard freedom as a nonmoralized consideration. Otherwise we have no basis in freedom for justifying property rights or resolving property disputes when uses of property conflict.

A contractualist framework can offer a freedom-based justification of private property rights that departs from libertarian premises. In this picture, the principles of right are whatever principles persons would rationally choose (or could not reasonably reject) to govern their interpersonal claims, given that they are, and understand themselves to be, free and equal in relation to one another. If they chose a regime of privileges only, this would amount to anarchist communism, in which the world is an unregulated commons. Such a regime would lead to depleted commons—razed forests, extinct game, destroyed fisheries. It would also give everyone a greater incentive to take what others produced than to produce themselves. Few would invest their labor in external things, everyone would be poor, and meaningful opportunities would be rare. By contrast, adoption of an institutional scheme of extensive private property rights, including broad freedoms of exchange and contract, would create vastly richer opportunities for peaceful and cooperative production on terms of mutual freedom and equality. All have an overwhelming common interest in sustaining an institutional infrastructure of private property rights that generates more positive freedom —better opportunities—for all.

This argument justifies rights to negative freedom with respect to external property in terms of positive freedom. It does not suppose, as libertarian arguments do, that the liberty interests of the individual override the common interest. Rather, it claims that people have a common interest in sustaining a regime of individual rights to property. On this view, individual rights are not justified by the weight of the individual interest they protect, but by the fact that everyone has a common interest in relating to each other through a shared infrastructure of individual rights ( Raz, 1994 ). The infrastructure of private property rights is a public good, justified by its promotion of opportunities—of positive freedom—for all. A well-designed infrastructure provides a framework within which individuals can relate to one another as free and equal persons.

So far, the argument is one of evaluative priority only. It has been argued that if one wants to justify private property rights in terms of freedom, one must grant evaluative priority to positive or republican over negative freedom. Discussion of the implications of this argument for the content of a just scheme of private property rights—to whether a just scheme would look more libertarian, or more egalitarian—will be postponed to the last section of this chapter.

3. Republican Freedom and the Justification of Inalienable Rights

If negative freedom were the only conception of freedom, it would be difficult to offer a freedom-based justification of inalienable rights. If Sarah’s right is inalienable, then she is immune from anyone changing her right. This could look attractive, except that it entails that she is disabled from changing her own right—that she lacks the power to waive others’ correlative duties to respect that right ( Hohfeld, 1913–1914 : 44–45, 55). This is a constraint on her higher-order negative liberty. This liberty is higher-order because it concerns not the liberty to exercise the right, but the liberty over the right itself.

Inalienable rights might also leave the individual with an inferior set of positive freedoms than if her rights are alienable. Contracts involve an exchange of rights. There is a general presumption that voluntary and informed contracts produce gains for both sides. To make Sarah’s right inalienable prevents her from exchanging it for rights she values more, and thereby reduces her opportunities or positive freedom.

However, there are strategic contexts in which individuals can get much better opportunities if some of their rights are inalienable ( Dworkin, 1982 : 55–56). In urgent situations, when one party cannot hold out for better terms, the other can exploit that fact and offer terms that are much worse than what they would otherwise be willing to offer. Peter, seeing Michelle drowning, might condition his tossing her a life ring on her agreeing to become his slave, if her rights in herself were fully alienable. But if she had an inalienable right to self-ownership, Peter could not exploit her desperation to subject her to slavery, but would offer her better terms.

Such considerations leave libertarians torn between accepting and rejecting the validity of voluntary contracts into slavery. 4 Those tempted by the negative liberty case in favor of full alienability of rights should recall the antislavery arguments of the Republican Party before the Civil War. Republicans objected to slavery because it enabled slaveholders to subordinate even free men to their dominion. The Slave Power—politically organized proslavery interests—undermined the republican character of government. It suppressed the right to petition Congress (via the gag rule against hearing antislavery petitions), censored the mail (against antislavery literature), and forced free men, against their conscience, to join posses to hunt down alleged fugitive slaves. It violated equal citizenship by effectively granting additional representation to slaveowners for their property in slaves (via the three-fifths rule for apportioning representatives). By insisting on the right to hold slaves in the territories, the Slave Power threatened the prospects of free men to secure their independence by staking out individual homesteads. Slave plantations would acquire vast territories, crowding out opportunities for independent family farms. Chattel slavery of blacks threatened to reduce whites to wage slaves, subordinate to their employers for their entire working lives ( Foner, 1995 ).

The Republican antislavery argument is similar to the positive liberty argument above: it stresses how the constitution of a scheme of liberty rights provides the public infrastructure for a society of free and equal persons. The critical point is to institute a scheme of individual rights that can sustain relations of freedom and equality—understood as personal independence and nondomination—among persons. While the Republican Party limited its arguments to securing relations of nondomination among men, feminist abolitionists extended their arguments to married women, who, like slaves, lacked the rights to own property, make contracts, sue and be sued in court, keep their earned income, and move freely without getting permission from their masters (husbands) ( Sklar, 2000 ). Like the positive liberty argument for individual rights, it recognizes how individuals have a vital stake in other people’s liberty rights being secure against invasion or appropriation by others. The stability of this public infrastructure of freedom depends on individual rights being inalienable.

It is to no avail to reply that a libertarian scheme of fully alienable rights that permits voluntary slavery would reject the forced slavery of the antebellum South, along with the violations of free speech and republican government needed to secure the institution of slavery against state “interference.” For the Republicans’ antislavery argument was about the stability of certain rights configurations under realistic conditions. It was that a society that enforces rights to total domination of one person over another will not be able to sustain itself as a free society of equals over time. How the dominators acquired those rights, whether by force or contract, is irrelevant to this argument. Slaveholders, in the name of protection of their private property rights, used the immense economic power they gained from slavery to seize the state apparatus and crush republican liberties. This is a version of the classical republican antiplutocratic argument against extreme wealth inequality. But it was also directed toward the threat that slavery posed to economic independence of free men—to their prospects for self-employment, for freedom from subjection to an employer.

Debra Satz ( 2010 : 180, 232n40), citing Genicot (2002) , offers a similar argument against debt bondage, adapted to contemporary conditions. Two dynamics threaten the ability of workers to maintain their freedom if they have the power to alienate their right to quit to their creditor/employer. First, the availability of debt bondage may restrict opportunities to obtain credit without bondage. Bondage functions as a guarantee against destitute debtors’ default: they put up their own labor as collateral. However, the institution of debt bondage makes it more difficult to establish formalized credit and labor markets by which alternative methods of promoting loan repayment (such as credit ratings and garnishing wages) make credit available without bondage.

Second, living under conditions of bondage makes people servile, humble, and psychologically dependent—psychological dispositions that they are likely to transmit to their children. Servile people lack a vivid conception of themselves as rights-bearers and lack the assertiveness needed to vindicate their rights. Moreover, the poor are unlikely to hang on to their freedom for long, given their strategic vulnerability when others are already giving up their alienable rights under hard bargaining. A system of fully alienable libertarian rights is thus liable to degenerate into a society of lords and bondsmen, unable to reproduce the self-understandings that ground libertarian rights. A free society cannot be sustained by people trained to servility and locked into strategic games where some individuals’ alienation of their liberty rights puts others’ liberties at risk ( Satz, 2010 : 173–180).

This argument generalizes. Workers may have a permanent interest in retaining other rights besides the formal right to quit, so as to prevent the authority relations constitutive of employment from conversion into relations of domination. For example, they have a permanent interest against sexual and other forms of discriminatory harassment. Under U.S. law, workers have inalienable rights against such degrading treatment. In addition, since lower-level workers have minimal freedom at work, but spend their workdays following others’ orders, they have a vital interest in secure access to a limited length of the working day—in having some hours in which they act under their own direction. This is the purpose of maximum hours laws, which forbid employers from conditioning a job offer on having to work too many hours per week. The logic in both cases is strategic: once employers are free to make such unwelcome “offers” (or rather, threats), the decision of some to accept removes better offers from other workers’ choice sets, and thereby deprives them of both positive and republican freedom.

As in the case of contractual slavery, libertarians are divided over this type of argument. Mill (1965 : XI, §12) supported maximum hours laws as an exception to laissez faire, on strategic grounds. The early Nozick would probably have accepted laws against sexual harassment, because conditioning a job on putting up with a hostile atmosphere or compliance with the boss’s sexual demands makes workers worse off relative to a normative baseline of not being subject to unwelcome sexual affronts, and hence counts as coercive. 5 However, the Nozick of Anarchy, State, and Utopia would have rejected such laws as interfering with freedom of contract, given that he accepted contractual slavery. Eric Mack (1981) also upholds an absolute principle of freedom of contract, and so would be committed to the alienability of rights against sexual harassment and even assault in labor contracts.

Mack recognizes that it is disingenuous to claim that restraints on freedom of contract that improve workers’ choice sets violate their freedom of contract. Hence minimum wage laws, if they only raise wages and do not increase unemployment, do not violate workers’ rights. His complaint is that such restraints violate employers’ rights, coercing them into offering better terms to workers than they wanted to make. They treat employers as mere resources to be used by others in pursuit of goals the employer does not share ( Mack, 1981 : 6–8). This argument, if applied to laws against sexual harassment and similar forms of personal domination, is bizarre. One would have thought that employers who threaten their workers with job loss if they do not put up with sexual subordination are treating them as mere resources to be used by the employer in pursuit of goals the workers do not share.

Mack contrasts a morality of “social goals” with one of deontological side constraints, claiming that the former treats people as mere means and the latter treats people as ends in themselves. A deontology of complete alienability of rights in one’s person, however, leads to a society in which some are made others’ partial or total property, reduced to instruments of the others’ arbitrary wills, and deprived of all three kinds of freedom. That they entered such a state by choice does not undermine the conclusion. Rather, it proves that liberty does not only upset equality—it also upsets liberty. To be more precise: negative liberty upsets liberty.

Suppose our “social goal” is to sustain a society in which individuals relate to each other as free persons—which is to say, as equal and independent, not subject to the arbitrary will of others? That would seem to be not merely unobjectionable to a libertarian, but the very point of a libertarian view. The scheme of rights required to realize such a society cannot be devised without tending to the likely consequences of choices made within it. The infrastructure of rights needed to sustain a society in which individuals relate to each other as free persons requires that the rights most fundamental to the ability to exercise independent agency be inalienable, so that no one becomes subject to another’s domination. Thus, the fundamental freedom-based rationale for inalienable rights is based on considerations of republican freedom. It entails that a free society requires substantial authority egalitarianism.

4. Freedom, Equality, and the Definition of Property Rights

I conclude with some remarks on the definition of property rights. Much libertarian writing supposes that as soon as an argument is given to justify a right to private property in something, this justifies all the classical incidents of property—including rights to exclude, use, alter, and destroy it, to give, barter, or sell all or any parts of it or any rights to it, to rent, loan, or lease it for income, all with unlimited duration ( Honoré, 1961 ). Why is a separate argument not required for each of these incidents? Shouldn’t the nature and function of the property in question play a role in determining which rights are attached to it, and for how long? For example, while the right to destroy is easily granted to most chattels, the positive liberty of future generations provides compelling reasons to deny it to property in land and water resources. Such interests also justify limits on dividing property into parcels or rights bundles too small to use ( Heller, 1998 ). It is also questionable how any case for intellectual property rights can be grounded in considerations of negative liberty, given that a regime of universal privilege with respect to ideas does not interfere with the liberties of authors and inventors to create and use their works. A freedom-based case for intellectual property can only be made on positive liberty grounds, and then only justify limited terms for copyrights and patents, given the role of the intellectual commons in expanding cultural and technological opportunities.

A just system of legal rules of property, contract, banking, employment, and so forth constitutes a public infrastructure that can sustain a free society of equals over time. Since, in a well-ordered society, members sustain this infrastructure by paying taxes and complying with its rules, each member has a legitimate claim that the rules secure their access to opportunities generated by that infrastructure. The case is no different from the system of public roads. Fair distributions of access to opportunity matter here, too. A system of roads that accommodates only cars, with no pedestrian sidewalks, crosswalks, and stop lights, denies adequate opportunities for freedom of movement to those without cars. It would be absurd for drivers to object to pedestrian infrastructure because it interferes with their negative liberty. They have no claim that the publicly supported infrastructure be tailored to their interests alone.

Arguments over the rules defining private property rights are comparable. Since everyone needs effective access to private property to secure their liberty interests, property rules should ensure such access to all. Such distributive concerns might be partially secured, for example, by way of estate taxes, the revenues of which are distributed to all in the form of social insurance. As Paine (1796) argued, such taxes do not infringe private property rights, but rather constitute a partial unbundling of property rights to secure the legitimate property rights of others. That one of the incidents of property (protecting wealth interests) partially expires upon the death of the owner is no more a violation of property rights than the fact that patents expire after twenty years: such rules simply define the scope of the right in the first instance.

Three features of the public infrastructure of economic rights in social democratic orders promote, and arguably are needed to secure, decent opportunities for all to live on terms of republican freedom and hence authority egalitarianism with respect to everyone else. First, as argued above, individuals need a robust set of market inalienable rights, to avoid domination by their employers. Second, as Paine argued, they need a universal system of social insurance to secure their independence in cases of inability to work or to find work ( Anderson, 2008 ). Third, under modern conditions, they need free, universal education, to avoid domination by parents and others, and to secure a self-conception as someone with rights of personal independence. Each of these can be understood as individual property rights, secured via partial unbundling of classical private property rights. None require state ownership or management of productive enterprises, or bureaucratic administration of individuals’ lives. They merely constitute an alternative type of private property regime. It is superior to a libertarian one on grounds of freedom , because it better secures positive and republican freedom for all. Since any credible freedom-based argument for private property rights must already recognize the normative priority of positive and republican freedom over negative freedom, it is hard to run credible freedom-based arguments against these core institutions of social democracy at the level of abstraction at which these arguments proceed in political philosophy. Of course, the details of any particular implementation of these institutions may have many objectionable features, as is also true of private employment relations. Because the conditions of republican and positive freedom are sociologically complex, we cannot expect arguments at a high level of abstraction to settle disputes over the details of a property regime suitable for a free society of equals. The current chapter demonstrates that the ideal of a free society of equals is not an oxymoron: not only is relational equality not fundamentally opposed to freedom, in certain senses equality is needed for freedom. Inequality upsets liberty.

Ferguson, Missouri, the site of protests triggered by the police homicide of a black man stopped for jaywalking, illustrates this phenomenon. With a declining tax base, Ferguson turned to police to raise revenue by incessantly harassing mostly black citizens with traffic citations. They turned citations into the second-highest source of city revenue by issuing an average of three warrants and $321 in fines per household . Poor individuals who cannot pay the fines and fail to appear in court to explain why are often arrested and thrown into jail for weeks ( Tabarrok, 2014 ). By comparison to such gross violations of republican freedom, the negative liberty constraints of a regular tax raising the same total revenue are trivial.

Rawls clearly distinguished the republican concern that extreme wealth inequality leads to plutocracy from the egalitarian interest in the fair division of income and wealth as such. This is why he grounded progressive inheritance taxes in the principle of equal basic liberties (including the fair value of political liberties—an antiplutocratic principle), rather than the difference principle, which takes the fair distribution of income and wealth as its direct object ( Rawls, 1999 : 245, 70).

For the classic distinction between privileges and rights, see Hohfeld, 1913–1914 : 30–44.

For libertarians who oppose contractual slavery, see Mill (1859 : 184) and Rothbard (1998 : 40–41). For those who think slave contracts should be enforceable, see Nozick (2013 : 331), Alexander (2010) , and Block (2003) . Locke, an inspiration to libertarians, rejected contractual slavery; see Locke, 1824b : §23 and more aptly Locke, 1824a : §42. However, both his arguments rely on non-libertarian premises: in the Second Treatise , against a right to suicide; in the First Treatise , asserting a positive right to charity.

Nozick (1969) argues that a proposal can count as a threat, and hence be coercive, even if the proposer has a legal right to carry out the negative consequence for the recipient (452), and that such cases of coercion can include employer threats to fire workers if they fail to comply with the employer’s wishes (for example, by voting to be represented by a union) (453). Hence, in his early view, employers can coerce workers even if workers have exit rights and employers have the right to fire them at will. See also Flanigan (2012) , arguing that sexual harassment at work constitutes wrongful coercion if the empirical expectation for the job does not include sex work. This allows employers to get off the sexual harassment hook simply by listing sexual harassment in boilerplate contractual language for all employees, even for jobs such as cashier and carpenter that have nothing to do with performing sexual services. Still, it reflects some appreciation by a libertarian, however ambivalent, of the reality of workplace coercion.

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Freedom of Sex

The moral case for letting trans kids change their bodies..

This article was featured in One Great Story , New York ’s reading recommendation newsletter. Sign up here to get it nightly.

One often hears today that gender is a social construct. The idea is sometimes credited to the book Gender Trouble, published in 1990 by a handsome young philosopher named Judith Butler. In fact, sociologists began thinking of gender as a social achievement distinct from sex as early as the 1960s. What Butler proposed was more radical: that the repeated citation of gender norms — things like wearing heels or drinking Scotch — produced the illusion of a biological sex just waiting to be infused with meaning. For Butler, gender was performative, a term they borrowed from the philosophy of language, where it referred to sentences that seem to do things: “I promise,” for instance, a phrase that literally makes a promise. Gender, too, was a kind of promise — “It’s a girl” — one that, because it was not anchored in biological sex, had to be constantly reaffirmed through performative acts, thus allowing the dominant norms to be renegotiated or even subverted. Butler’s example was drag performance, which, by exaggerating the normal rules of gender, acted as an allegory for the way everyone performed gender every day.

These ideas were tremendously influential in the formation of gender studies . But two principal criticisms of Butler soon arose. The first was that they had effectively denied the reality of biological sex; after all, there was a big difference between a drag queen and your average woman. The second was that Butler had made gender sound like something you could voluntarily opt into. Butler would spend the better part of their career trying to acknowledge the materiality of sex — even as they downplayed its relevance — while fending off the idea that gender could be assumed through a spontaneous act of will. It was not as if, they wrote, one simply “woke in the morning, perused the closet or some more open space for the gender of choice, donned that gender for the day, and then restored the garment to its place at night.”

What Butler could not have anticipated is that, some 30 years later, people really would be waking up one morning and choosing a new gender. At least this is the impression one gets from the “debate” now raging in this country over the rights of transgender youth — a rapidly accelerating campaign that has united the far right, the liberal center, and certain feminists on the left. Last year — the worst so far — Republicans introduced hundreds of bills that would ban gender-affirming health care for minors, restrict the participation of trans kids in sports, and force schools to out students to their parents. (They are increasingly turning their sights on adults.) Around half of all transgender youth — some 140,000 kids and teens — now live in a state where minors have, or may soon have, no legal access to gender-affirming care . To whom should they turn? The New York Times regularly runs stories playing up the perils of youth gender medicine; the author of Harry Potter is anxiously projecting her fears of sexual assault onto them from across the sea. The public increasingly believes that what the kids call gender is really just trouble : depression, anxiety, autism, family dysfunction, peer pressure, or social media, any of which — not to mention the universal awkwardness of puberty itself — are better explanations for why a child might question their identity.

In This Issue

The left must reckon with its part in this. It has hung trans rights on the thin peg of gender identity, a concept clumsily adapted from psychiatry and strongly influenced by both gender studies and the born-this-way tactics of the campaign for marriage equality. This has won us modest gains at the level of social acceptance. But we have largely failed to form a coherent moral account of why someone’s gender identity should justify the actual biological interventions that make up gender-affirming care. If gender really is an all-encompassing structure of social norms that produces the illusion of sex, critics ask, why would the affirmation of someone’s gender identity entail a change to their biology? As a result, advocates have fallen back on the clinical diagnosis of gender dysphoria , known until about a decade ago as gender identity disorder, defined as the distress felt at the incongruence of gender identity and biological sex. The idea that trans people fundamentally suffer from a mental illness has long been used by psychiatrists to decide who “qualifies” for transition-related care and who does not. By insisting on the medical validity of the diagnosis , progressives have reduced the question of justice to a question of who has the appropriate disease. In so doing, they have given the anti-trans movement a powerful tool for systematically pathologizing trans kids.

How to respond to all this? Butler’s new book, Who’s Afraid of Gender? , is one attempt, and it promises to ignite another round of public conversation about trans rights when published later this month. They write well of the global panic over “gender ideology” and acknowledge that the theory of gender performativity seems “questionable” in light of subsequent criticisms. But they continue to treat gender as the more promising terrain for political struggle. One suspects that, even after all these years, Butler is still afraid of sex. They are not alone: Many trans advocates worry that if they concede the significance of biological sex — as opponents of trans rights demand they do — this will thwart their political claims. The focus on gender, given its substantial psychic and social components, appears to be a more plausible ground for self-determination. But this fear has left a vast swath of political territory open to the anti-trans movement, which now hides its repressive goals behind the rhetoric of neutral biological fact.

It seems to me that this is a fear we can no longer afford. To confront the reality of biological sex is not, by definition, to swear fealty to that reality; no one knows this better than a child who wishes to have their biological sex changed. We must be able to defend this desire clearly, directly, and — crucially — without depending on the idea of gender. Back in the 1970s, sociologists hypothesized that the withering away of gender roles in a liberal society would lead to a decline in the number of people who wanted to change their sex. We may now say this hypothesis was wrong: An increase in gender freedom has coincided with a rise in the number of people wishing to change their sex. For these people, sex itself is becoming a site of freedom. This freedom is not unprecedented: Many Americans, though they may not realize it, already enjoy a limited version of the freedom to alter their sexual biology. What is new is the idea that this freedom can be asserted as a universal right by a group as politically disenfranchised as the young. This is why the anti-trans movement is so desperate: It is afraid of what sex might become.

A decade ago, when Time magazine memorably declared the arrival of the “ transgender tipping point ,” the public was dimly prepared to accept that trans people were like gay people — that is, safe, legal, and rare. The successful corporate boycott of North Carolina over its 2016 law restricting trans people’s use of public restrooms seemed to bear this out; even candidate Trump considered bathroom bills a losing issue . But the nation’s first pangs of dutiful charity have rapidly subsided — in no small part because the focus has shifted from adults to children. In 2018, The Atlantic published a long cover story by the reporter Jesse Singal called “ When Children Say They’re Trans ,” focusing on the clinical disagreements over how to treat gender-questioning youth. The story provided a template for the coverage that would follow it. First, it took what was threatening to become a social issue, hence a question of rights, and turned it back into a medical issue, hence a question of evidence; it then quietly suggested that since the evidence was debatable, so were the rights. This tactic has been successful: The political center has moved significantly on trans issues. The public now appears to favor protections for trans people from discrimination in employment, housing, and public spaces in line with the Supreme Court’s 2020 ruling in Bostock v. Clayton County . But a growing majority of Americans also believe gender is determined by sex at birth , and even more (almost 70 percent) oppose puberty blockers for trans kids.

Three main tendencies compose the anti-trans bloc in America today. The first, and most obvious, is the religious right, a principally Christian movement that holds that trans people are an abomination and that “gender ideology” is part of a broader leftist conspiracy to corrupt the youth. The second tendency is also obvious, if smaller: gender-critical feminists, better known as TERFs. This group has its roots in the lesbian feminism of the ’70s; today, the polemical acronym, which originally stood for “trans-exclusionary radical feminist,” is used to describe any feminist who justifies her anti-trans views by citing women’s rights. These views include the idea that gender must be smashed rather than affirmed; that women constitute a “sex class” on the basis of their shared biology; and that the trans-rights framework exposes natal women to sexual violence at the hands of trans women, who are imagined as predatory males. (Most TERFism in the U.S. is imported: TERFs have their strongest foothold in the U.K. )

But the most insidious source of the anti-trans movement in this country is, quite simply, liberals. Butler, in their survey of the political landscape, misses the liberal faction altogether. I suspect this is because the anti-trans liberal sees himself as a concerned citizen, not an ideologue. He is neither radical nor a feminist; he is not so much trans-exclusionary as he is broadly skeptical of all social-justice movements. He is a trans-agnostic reactionary liberal — a TARL. The TARL’s primary concern, to hear him tell it, lies in protecting free speech and civil society from the illiberal forces of the woke left , which, by forcing the orthodoxy of gender down the public’s throat and viciously attacking anyone who dares to ask questions, is trafficking in censorship, intimidation, and quasi-religious fanaticism. On trans people themselves, the TARL claims to take no position other than to voice his general empathy for anyone suffering from psychological distress or civil-rights violations.

The leading voice for such ideas in the United States is the Times. In the past several years, the paper has vigorously normalized the idea that sustained public debate over the rights of trans kids is not only justified but urgent. In 2022 alone, it devoted more than 28,000 words to the topic of trans youth, including a lengthy New York Times Magazine piece by staff writer Emily Bazelon on the “ unexplained rise in trans-identified teenagers .” The paper paints a consistent picture. Genuine transgender people, its reporters suggest, are a very small clinical population of adults with a verified mental illness whose persistent distress entitles them to gender-affirming care like hormone therapy and transition-related surgeries. Trans-identified youth — whose numbers, we are told, are “ small but growing ” — are beset by comorbidities like depression or autism spectrum disorder that stymie clear diagnosis, yet they are being rushed into life-changing treatments that many of them may later regret, as evidenced by the cautionary tales of people who detransition later in life . To make matters worse, the “overheated political moment,” inflamed by both right-wing backlash and the strident tactics of trans activists, is preventing the medical Establishment, which is trusted implicitly, from coming to a sober consensus.

At the same time, the paper consistently refuses to treat transition-related care the way it would any other health-care matter. Last year, the Times ran a story on a small Missouri gender clinic that had been overwhelmed by an “unrelenting surge in demand.” But the paper did not present this as an issue of access, as it has done with the national shortage in affordable home care or the inundation of abortion clinics with out-of-state patients post- Dobbs. Rather, the demand itself was suspect, a result of poorly explained psychological and social forces that had “bewildered” experts, whose warnings were as usual being drowned out by activists. Indeed, the average Times -reading liberal is left with the impression that, because politics obstructs the slow work of scientific consensus-building, trans people’s best shot at receiving health care is to stop asking for it.

The Times is not alone; it is one of many respectable publications, including The Atlantic and The Economist , engaged in sanitizing the ideas promoted by TARLs in the more reactionary corners of the media landscape . Here one finds journalists like Singal, Matthew Yglesias, Matt Taibbi, Andrew Sullivan, Helen Lewis, Meghan Daum, and, of course, former Times staffer Bari Weiss. Many of these writers live in self-imposed exile on Substack, the newsletter platform, where they present themselves as brave survivors of cancellation by the woke elites. But they are not a marginal force. (It was Weiss’s media company that first broke the story about the clinic in Missouri .) These writers are far more likely to be militants than their counterparts at the Times ; they are especially preoccupied with the “science denial” of radical activists, who have put wokeness before rational standards of care. In the words of one TARL, “Biology has been canceled. ” Of particular note here is Singal, who has often accused trans activists of mounting an Orwellian campaign to discount “ the relevance of biological sex .” It would be “profoundly unfair,” he wrote last year, if a “large male” like himself were to suddenly demand that others see him as a woman. (It did not occur to him that this is precisely why trans girls, who are well aware of their biology, are asking for puberty blockers: so that they do not grow up to look like Jesse Singal.)

Trans skeptics have seized on the idea of “ rapid-onset gender dysphoria ,” a term proposed by the public-health researcher Lisa Littman in 2018 to describe children with no history of gender variance who suddenly developed gender dysphoria as a result of “social influences and maladaptive coping mechanisms.” The study was a sham. It surveyed parents, not kids, whom it recruited from trans-skeptical communities online , and it assumed that clusters of trans kids were proof of social contagion as opposed to, say, self-selection. The idea that children were being unduly influenced by the internet was especially rich coming from participants harvested from a private Facebook group. But the general notion that trans kids have confounding diagnoses and high rates of desistance (the natural fading of symptoms with age) has proliferated throughout the anti-trans movement.

Now, to be clear, the TARL will typically acknowledge the existence of a group of fully developed adults whose medically verified gender dysphoria is so persistent and distressing that the argument for compassionate care outweighs the Hippocratic prohibition on harming a perfectly healthy body. The basic strategy here is to create a kind of intake form with exactly two boxes on it. Every trans-identified person is either a participant in a craze or certifiably crazy. (Checking both boxes is permitted.) There is a touch of genius to this approach. It draws a bright line between the kids who say they are trans and the kids who really are while pathologizing all of them as either delusional or dysphoric. This line is as old as gender medicine itself, which for decades was careful to distinguish impersonators and fetishists from the “true transsexual.” So in most cases of gender variance, the TARL informs parents that it is perfectly healthy for boys to wear dresses and for girls to climb trees regardless of their biological sex, which need not be altered after all. He reassures them that the risk of suicide among trans-identified youth has been inflated by cynical activists trying to blackmail the public ; what he means by this is that he does not think most kids are suicidal enough to be trans. In those rare instances of true misery, he advises the practice of “ watchful waiting ,” preferring to see the patient through the often-irreversible changes of puberty to adulthood, when her childhood experience of gender incongruence will finally acquire the weight of medical evidence. If only she had said something sooner!

This is obviously not a vision of justice; it is a response plan for an epidemic. This should not surprise us. The very simple fact is that many people believe transgender is something no one in their right mind would ever want to be. The anti-trans bloc has in general targeted children because Americans tend to imagine children both as a font of pure, unadulterated humanity and as ignorant dependents incapable of rational thought or political agency. This has allowed the movement to infantilize not just kids but all trans people, whom it only wishes to shepherd through the ravages of mental illness and the recklessness of youth. If the liberal skeptic will not assert in mixed company that there should be fewer trans people, he still expects us to agree on basic humanitarian grounds that at least there should not be more. It is quite possible, for instance, to believe that cancer patients should have access to aggressive treatments with potentially life-altering effects while also sincerely believing that, in a perfect world, no one would have cancer.

We will never be able to defend the rights of transgender kids until we understand them purely on their own terms: as full members of society who would like to change their sex. It does not matter where this desire comes from. When the TARL insinuates again and again that the sudden increase of trans-identified youth is “unexplained,” he is trying to bait us into thinking trans rights lie just on the other side of a good explanation. But any model of where trans people “come from” — any at all — is a model that by default calls into question the care of anyone who does not meet its etiological profile. This is as true of the old psychiatric hypothesis that transsexuality resulted from in utero exposure to maternal sex hormones as it is of the well-meaning but misguided search for the genes that “cause” gender incongruence . It is most certainly true of the current model of gender identity as “ consistent, insistent, and persistent ,” as LGBTQ+ advocates like to say. At best, these theories give us a brief respite from the hail of delegitimizing attacks; they will never save us. We must be prepared to defend the idea that, in principle, everyone should have access to sex-changing medical care, regardless of age, gender identity, social environment, or psychiatric history. This may strike you as a vertiginous task. The good news is that millions of people already believe it.

In October 1958, a young woman appeared at the UCLA department of psychiatry with an unusual complaint. Agnes, as she is known today, had supple breasts, smooth skin, and a narrow waist. She also had, much to the consternation of her boyfriend, a typical set of male genitalia. In interviews with the psychiatrist Robert J. Stoller, Agnes related how she had been raised as a boy but had always believed she was a girl — a belief confirmed at puberty, when she naturally began developing breasts. Testing showed that Agnes lacked a uterus or ovaries but that her testes were producing high levels of estrogen. Satisfied, the doctors surgically replaced her genitals with a vagina constructed from penile and scrotal tissue. Stoller, who had become quite fond of Agnes, saw evidence for his theory that the endocrine system had a strong determining role in a person’s conscious or unconscious awareness of their biological sex. (He and his colleagues in Los Angeles had taken to calling this “gender identity.”) Years later, Agnes casually divulged the truth: At age 12, disturbed by the onset of perfectly typical male puberty, she had begun taking her mother’s estrogen pills. “She is not an example of a ‘biological force’ that subtly and inevitably influences gender identity, as I had reported,” Stoller admitted in his 1967 book, Sex and Gender. “She is a transsexual.”

Agnes had simply told the doctors what they wanted to hear . But why did her mother have estrogen pills in the first place? In passing, Stoller noted that the latter had been prescribed a synthetic estrogen following a total hysterectomy that included her ovaries; in other words, she was one of the millions of 20th-century women who would be prescribed estrogen for treating symptoms of menopause. In his 1966 best seller Feminine Forever, the gynecologist Robert A. Wilson argued that menopause was basically a hormone deficiency, like diabetes, that could safely be treated through estrogen therapy. He claimed his patients were part of a new sexual revolution: They had supple breasts, smooth skin, and legs that looked good in a tennis skirt. After Wilson’s death, it would come out that he had been receiving payments from the makers of Premarin , an estrogen medication derived from the urine of pregnant mares. Nevertheless, many women really did find hormone therapy effective for a wide range of menopausal symptoms, from hot flashes to vaginal atrophy, and in 1992, Premarin was the most prescribed drug in America . “Women, after all, have the right to remain women,” Wilson had written. “They should not have to live as sexual neuters for half their lives.”

So when Agnes visited UCLA, she did not need to prove that a right to female biology existed. She was simply trying to convince the doctors that this right also applied to her. In fact, the vast majority of Americans have long believed everyone has a right to keep their biological sex. The prospect of forcible sex change is the stuff of horror movies. In 1997, the Times ran a front-page story about an anonymous man, later identified as David Reimer, who was raised as a girl after a botched circumcision destroyed his genitals . His care was overseen by controversial psychologist John Money, Stoller’s colleague, who gave Reimer estrogen to induce breast growth and allegedly had him perform sex acts with his twin brother. After learning the truth as a teenager, Reimer started testosterone, had his breasts removed, and received phalloplasty. That this was something of a small national tragedy went without saying. The Times compared his struggle to the travails of Oedipus or King Lear ; when he committed suicide in 2004, the paper ran his obituary . Reimer’s story is popular in the anti-trans literature because, alongside the general depravity of the affair, it appears to prove that gender has an inescapable basis in biological sex: Reimer knew he wasn’t a girl, no matter what the doctors did to him. He told Oprah Winfrey he had never fit in as a girl , preferring to climb trees and play with trucks even as his mother tried to convince him that he was simply a “tomboy.”

This is, of course, the exact conversation many trans kids are having with their parents today. What Reimer’s story actually illustrates is that we are perfectly comfortable with sex changing when we understand it as changing back. This happens more often than one might think. The historian Jules Gill-Peterson has shown that the earliest treatments in the field of gender medicine were developed to “correct” intersex children by bringing their ambiguous biology within the range of what society considered normal. Even when these treatments were later charily extended to “transsexuals,” it was often on the assumption that some original biological sex, perhaps endocrine in nature, was being excavated. (This was why Stoller was so excited by the idea that Agnes’s testes were producing so much estrogen.) But as the medical understanding of sex ballooned to include things like gonad development and hormone activity, so did the risk of losing one’s sex as a result of age, heredity, disease, physical trauma, or the side effects of medical treatment. This was the cleverness of Agnes’s plan. She presented herself as a person who, just like her mother, needed to become female again. In fact, following the removal of her testes, she cannily discontinued her secret estrogen pills, leading to mood swings and hot flashes. The doctors promptly diagnosed her with — what else? — menopause and placed her on the same estrogen therapy that would be enjoyed by millions.

So what we today call gender-affirming care is part of a larger history of sex-affirming care governed by strong normative ideas of health, productivity, and moral worth. Many of the treatments in this field are broadly uncontroversial today: breast reconstruction following cancer, vasodilators for erectile dysfunction, antiandrogens for hair loss and hirsutism. In 2023, The New York Times Magazine ran a long, sympathetic essay on the “reassuring” evidence base for menopausal hormone therapy , which the writer called “a lost opportunity to improve women’s lives.” A few years earlier, the Times hailed the first successful transplant of a penis, scrotum, and the surrounding abdominal wall — the result of Pentagon-funded research aimed at restoring the dignity of soldiers whose genitals were damaged or destroyed by improvised explosives . (The donor’s family sent the patient a message: “We are all very proud that our loved one was able to help a young man that served this country.”) Even the recent rush on the part of the Alabama GOP to enshrine the legality of IVF treatments endangered by a surprise state supreme court ruling is an excellent reminder that many religious conservatives support significant medical interventions in biological sex — gonadotropins to stimulate follicle production, GnRH agonists to prevent the unplanned release of eggs, not to mention the whole business with the test tube — when the payoff is a human infant.

The real question is which sex can be affirmed — and why. It so happens, for instance, that GnRH agonists like those used in fertility treatments are also used to delay puberty in trans kids . This means your average Alabama Republican now ostensibly believes it should be a felony to give a child the same hormone blockers his mother may have used to conceive him . Our politician may rightly protest that the same drug is being used for very different purposes. But this is the point: It is the purpose of sex change, and not the change itself, which determines its acceptability. This is why sex-affirming care has historically entailed both the withholding of sex change from some and enforcement of it for others. Like most fields of medicine, it has a bloody underbelly of coercion: the vaginal surgeries tested on enslaved women in 1840s Alabama; the testicular transplants performed on gay men in Nazi Germany; and the surgical modification of infants with atypical genitalia , which continues today. Even Wilson was clearly preoccupied with keeping women perky and lubricated for their husbands. In Feminine Forever, he drolly recalled a man who laid his .32 automatic on the desk and declared that if the doctor could not “cure” his wife of her harridan ways, he would surely kill her himself.

Most people are not being made to change their sex at gunpoint. But it should be clear by now that when members of the anti-trans movement argue that sex cannot change, what they really mean is that sex shouldn’t change except in accordance with social norms. Butler has written a great deal on this subject; a robust theory of normativity is arguably their life’s work. For Butler, a social norm is not a belief or a cultural attitude. It is a deep structure of power that makes one’s sense of self possible. Norms precede us, form us, and act as our “constitutive constraints”; at the same time, since they depend on being constantly reiterated, they never capture us fully and can be reinterpreted. (They have called this “working the weakness in the norm.”) Butler tends to think of gender norms in terms of meaning; in fact, they often assume that gender itself is the symbolic structure through which sex comes to matter at all. This is part of their broader political strategy: to show first that something is saturated with social meaning in order to make it politically questionable.

But it is not enough to know what sex means ; we will have to understand what it does. Obviously, gender norms do not issue directly from the organs. One imagines that, even after her hysterectomy, Agnes’s mother was still expected to be nurturing and emotionally available. Yet to speak only of norms is to lose sight of the role of biological sex within a larger system of material relations. It is difficult to explain why the above gender norm would exist in the first place if it were not for the actual fact of reproduction, which at this point in the descent of man still requires very specific biological conditions in order to occur, including the presence of at least one of each gamete type (sperm and ova), a well-functioning uterus, and a reasonably sound endocrine system. This is sex as biological capacity ; in this sense, it is no less of a material resource than water or wheat. Every human society invested in perpetuating itself — which is to say, every society — has regulated the production, distribution, and use of biological sex. This is more than the sex-based division of labor (hunter-gatherers and all that). It is the actual division of sex.

It may sound as if I am saying sex is more real than gender — a proposition gender studies has abhorred since its inception. I do not think that sex is more real. But I am not terribly bothered by saying that the division of sex determines gender norms, so long as we remember that it never remotely finishes determining them. There is always a wide, shifting, and irregular gap between the two. One finds a brutal example of this in the antebellum South. As Hortense Spillers has written, the genteel system of southern patrimony was bluntly waived when it came to the rape of enslaved Black women by white slave owners, who could effectively produce new assets — that is, new enslaved people — in the form of their own disavowed children. Gender alone cannot explain such an arrangement; it cannot speak to how sex functions as a kind of material base, as the Marxist feminists might put it: a source of labor, wealth, and power from which the elaborate superstructure of gender continually emerges, breaks off, and reforms in unintended ways. (An old-fashioned name for such an arrangement is sex-gender system, coined by the anthropologist Gayle Rubin in 1975.)

No wonder “gender identity,” understood by well-meaning LGBTQ+ advocates as an abstract feeling, has done such a poor job of justifying sex change. If biological sex is part of a material structure of value, then society has a concrete interest in any potential gains or losses that may result, feelings be damned. Gill-Peterson tells the story of Robert Stonestreet, a 10-year-old boy who was brought to the Johns Hopkins Hospital for a rare urethral defect in 1915. When the doctors informed his father that the boy had ovaries and should be reassigned as a girl, the man refused, explaining that he already had six girls at home and his son was a great help around the family farm. Of course, Stonestreet was prepubescent. Whatever biological advantage he had over his sisters was the natural spoils of working daily on a farm. The point is that his father’s social validation of his gender was the basically incidental result of an economic calculation about his sex. Twenty-one years later, Stonestreet asked the same doctors to certify him as male so he could wed his fiancée. They refused — one suspects because a marriage with no reproductive potential struck them as dead in the water, especially with the national birth rate at an all-time low. Three days later, Stonestreet committed suicide — the victim of a society that could not make up its mind on how best to make sense of his gender while also extracting value from his sex.

This is the larger historical reason why the anti-trans movement does not want transgender people to receive sex-altering care. It is not clear how, if at all , such people will fit into the division of sex in America. The TERF does not, after all, fear being assaulted by a Y chromosome in a women’s restroom. Her paranoid fantasy is of a large testosterone-fueled body wielding a penis — an organ to which, as Butler points out, the TERF attributes almost magical powers of violence. (TERFs often seem to reject the idea that trans women are women on the basis that they are not sufficiently rapeable, when in fact trans women face much higher rates of sexual assault .) Liberals, meanwhile, object to trans girls’ participation in sports not because sperm swim faster than eggs but because trans girls, they suppose, will swim faster than their own little girls, who may then be deprived of athletic scholarships or other opportunities . Even Singal admits this is ultimately an issue of “ competing rights claims ,” not biological fact. Widespread discomfort at the largely fantastical idea that trans girls will always dominate in their chosen sports reflects a basic patriarchal belief that the physical advantages of being male are perfectly acceptable so long as they are possessed by men. (In this sense, sex division in sport is meant to enshrine inequality, not to mitigate it.)

The anti-trans bloc does not care about what sex is in some bloodless, positivistic sense. It cares about what sex does — or what it might not do, in the event that transition-related care becomes widely available. One of the greatest fears of the anti-trans movement concerns a shift in the population of trans kids seeking care, who by some counts are now predominantly female-assigned. (The accuracy of this claim has been disputed .) This idea was popularized by Abigail Shrier’s 2020 book, Irreversible Damage: The Transgender Craze Seducing Our Daughters, which hysterically claimed that an epidemic of anxiety and depression is leading “a generation of girls” to confuse the tribulations of female puberty with true gender dysphoria. Shrier wrote that the cost of this epidemic was “a pound of flesh,” and it was no secret which pound she meant. The book’s cover features an illustration of a girl with a physical hole — you can put your finger through it — where her uterus should be. The specter of mass infertility cannot be underestimated. I do not think it is an exaggeration to say that the anti-trans movement is driven by a deep, unconscious dread that society will not have enough working female biology to support the deteriorating nuclear family — and, with it, the entire division of sex itself.

This probably will not happen. Sex-altering care can indeed affect one’s fertility but not always irreversibly, and the trans population is still far too small to bring about that sort of demographic apocalypse. What we are witnessing is a potential reconfiguration of the division of sex — one that is highly disturbing to anyone with an instinctive loyalty to the status quo but that is no more inherently revolutionary than, say, the contraceptive Pill. The Pill was, after all, one of the most important advancements in sex-changing medicine of the 20th century. It had a dramatic effect on women’s sexual freedom and economic independence, but it did not bring about women’s liberation. On the contrary, it became an essential part of a new regime of rational management within the division of sex known as “family planning.” One can likewise imagine a marginally more benevolent society integrating hormone therapy and puberty blockers into its own division of sex without accidentally abolishing the family or smashing the patriarchy. True political change we must bring about ourselves. Sex-affirming care has always served someone’s moral vision for society. There is no reason it cannot serve ours.

What if we make freedom into the air we together breathe?” Butler asks at the end of Who’s Afraid of Gender? It is a beautiful thought. It would not mean the abolition of social norms — an impossible task — but rather a collective reimagining of them through alliances forged across our many differences. Butler argues that the struggle for trans rights cannot be merely cultural but instead must be connected to the fight for “the basic rights to housing, food, non-toxic environments, unpayable debt, and health care.” They are entirely right. But their principled commitment to coalition building can lead them toward a needlessly conciliatory position. It is hardly clear, for instance, that “trans rights to self-determination take no one else’s rights away.” This may be technically true, if one means trans people can be granted social recognition and legal equality without spoiling anyone else’s claim to the same. But if sex really is a biological resource, then there can be no remaking of the division of sex without real material losses — this would be like saying that socialism does not take away the rights of the wealthy. Such is the limitation of a social analysis like Butler’s. It imagines the anti-trans movement as consisting primarily of religious zealots and scheming politicians, and it does not consider that many might have a material interest in opposing what we should rightly call the redistribution of sex.

We need a stronger demand. Butler argues that it would be “counterproductive and wrong” to chalk up the existence of oppressive systems to biology. But why? I am of the opinion that any comprehensive movement for trans rights must be able to make political demands at the level of biology itself. This is an old radical-feminist idea, most famously found in Shulamith Firestone’s 1970 classic The Dialectic of Sex. Suppose women’s oppression really is a product of their biology, Firestone wrote. What follows? Only that feminists must work to change biological reality. The genius of this gambit was to refuse the idea that biological facts had some kind of intrinsic moral value that social or cultural facts did not. Biology could not justify the exploitation of human beings; indeed, it could not even justify biology, which was just as capable of perpetuating injustice as any society. When Firestone wrote of women as a “sex class,” she — unlike the TERFs who followed her — had in mind the Marxist dream of a classless society, something that could be achieved only by freeing humanity from the “tyranny of its biology.” For her, this meant a “revolutionary ecological programme” of fertility control, artificial reproduction, and the full automation of labor. That may sound unrealistic. But this is the point: Justice is always an attempt to change reality.

Sex is real. So is global warming. To believe in their reality is an indispensable precondition for making normative claims about them, as we know from climate activism. But the belief that we have a moral duty to accept reality just because it is real is, I think, a fine definition of nihilism. What trans kids are saying is this: The right to change sex that has been enjoyed for decades by their parents, friends, teachers, coaches, doctors, and representatives, especially if those people are white and affluent — this right belongs to them, too. We should understand this right as flowing not from a revanchist allegiance to an existing social order on the perpetual verge of collapse but from a broader ideal of biological justice, from which there also flows the right to abortion, the right to nutritious food and clean water, and, crucially, the right to health care.

I am speaking here of a universal birthright: the freedom of sex. This freedom consists of two principal rights: the right to change one’s biological sex without appealing to gender and the right to assume a gender that is not determined by one’s sexual biology. One might exercise both of these rights toward a common goal — transition, for instance — but neither can be collapsed into the other. I am put in mind of a bicameral system. Each chamber has its own prerogatives, but neither the exclusive upper chamber (sex) nor the boisterous lower one (gender) has the ultimate power to overrule the other. (Not all trans people wish to change their sex; some trans people are also gender-nonconforming.) By asserting the freedom of sex, we may stop relying on the increasingly metaphysical concept of gender identity to justify sex-changing care, as if such care were only permissible when one’s biological sex does not match the serial number engraved on one’s soul. The same goes for “sex assigned at birth,” which unhelpfully obscures the very biological processes that many people have a right to change. In general, we must rid ourselves of the idea that any necessary relationship exists between sex and gender; this prepares us to claim that the freedom to bring sex and gender into whatever relation one chooses is a basic human right.

What does this freedom look like in practice? Let anyone change their sex. Let anyone change their gender. Let anyone change their sex again. Let trans girls play sports, regardless of their sex status. If they excel, this means only that some girls are better at sports than others. Let people use the gender-segregated facilities of their choice; desegregate whenever possible. Do not out children to their parents. Do not force anyone to change their sex or their gender. Give everyone health care. The anti-trans movement has collected the public’s rising awareness of the staggering injustice of the American health-care system and directed it, like a syringe full of air, at a small population of children. The effect is to make it appear as if trans people do not want good health care or trustworthy providers, when the truth is that trans people face health disparities across the board, including higher reported rates of disability, asthma, and heart disease . No single federal program would benefit trans people more than Medicare for All. As for transition-related care itself, the right to change sex includes the right to receive counseling, to understand the risks, or to be treated for comorbidities; in fact, society has a duty to make these resources freely and widely accessible to trans kids. But these are practical options, not obligations. To make “thoughtfulness” a requirement of any universal right is to taper that right into an exclusive privilege. That trans kids’ access to care will in most cases be mediated by parents or legal guardians is an inescapable fact of the way our society regards children, rightly or not. For now, parents must learn to treat their kids as what they are: human beings capable of freedom.

The freedom of sex does not promise happiness. Nor should it. It is good and right for advocates to fight back against the liberal fixation on the health risks of sex-changing care or the looming possibility of detransition. But it is also true that where there is freedom, there will always be regret. In fact, there cannot be regret without freedom. Regret is freedom projected into the past. So it is one thing to regret the outcome of a decision, but it is a very different thing to regret the freedom to decide, which most people would not trade for the world. If we are to recognize the rights of trans kids, we will also have to accept that, like us, they have a right to the hazards of their own free will. This does not mean shooting testosterone into every toddler who looks at a football. But if children are too young to consent to puberty blockers, then they are definitely too young to consent to puberty, which is a drastic biological upheaval in its own right. Yet we let this happen every day — and not without casualties. I am not speaking of suicide; I am speaking of the many opponents of trans rights who observe with horror that they too might have transitioned given the chance, so intensely did they hate being teenage girls . I do not know if they regret their biology today. I do suspect they regret that they never got to choose it.

A choice! The thought is impossible. Yet we have no difficulty believing that 300,000 trans kids can choose to stop being trans. Freedom is easy to imagine when it is the freedom to do as you’re told. What we cannot conceive is why they are making all this gender trouble in the first place. They do not owe us an explanation. They are busy taking charge of their own creation. They may not change the world, but they will certainly change themselves. “Possibility,” Butler once wrote, “is not a luxury; it is as crucial as bread.” We have not yet begun to understand the courage of the child who says she is a girl for the first time without any biological “proof” to back this up. This is especially true if she lives in one of the many states that are working to ensure that saying so is all that trans kids like her will ever have. But still she speaks. The sentence “I am a girl” is performative speech in the classic sense: It performs an action. She is not only declaring her intent to exercise her freedom of sex in the future; she is, by uttering these words, already exercising it. She is working the weakness in the norm. She is not afraid of sex — she is against it. That is not nothing. There is, in fact, a very important population of Americans who do want trans kids to exist. I am told they are small but growing.

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Guest Essay

Hong Kongers Are Purging the Evidence of Their Lost Freedom

An illustration of a giant red snake wrapped around the feet of four people on a dark and empty street.

By Maya Wang

Ms. Wang is the acting China director for Human Rights Watch.

“What should I do with those copies of Apple Daily ?”

Someone in Hong Kong I was chatting with on the phone recently had suddenly dropped her voice to ask that question, referring to the pro-democracy newspaper that the government forced to shut down in 2021.

“Should I toss them or send them to you?”

My conversations with Hong Kong friends are peppered with such whispers these days. Last week, the city enacted a draconian security law — its second serious legislative assault on Hong Kong’s freedoms since 2020. Known as Article 23 , the new law expands the National Security Law and criminalizes such vague behavior as the possession of information that is “directly or indirectly useful to an external force.”

Hong Kong was once a place where people did not live in fear. It had rule of law, a rowdy press and a semi-democratic legislature that kept the powerful in check. The result was a city with a freewheeling energy unmatched in China. Anyone who grew up in China in the 1980s and 1990s could sing the Cantopop songs of Hong Kong stars like Anita Mui, and that was a problem for Beijing: Freedom was glamorous, desirable.

When Britain handed Hong Kong back to China in 1997, the city’s people accepted, in good faith, Beijing’s promises that its capitalist system and way of life would remain unchanged for 50 years and that the city would move toward universal suffrage in the election of its leader.

Not anymore. Now Hong Kong people are quietly taking precautions, getting rid of books, T-shirts, film footage, computer files and other documents from the heady days when this international financial center was also known for its residents’ passionate desire for freedom.

I used to joke that I never needed to watch dystopian series like “The Handmaid’s Tale” or “The Hunger Games.” As someone who has lived and worked for years in Hong Kong and China, I know what it feels like to descend into deepening repression, remembering our free lives.

As Beijing kept breaking its promises over the years, Hong Kongers took to the streets to defend their freedoms nearly every sweltering summer. In 2003, demonstrations by half a million people forced Hong Kong’s government to shelve an earlier attempt to introduce Article 23. In 2014, hundreds of thousands peacefully occupied parts of the city for 79 days to protest moves by Beijing to ensure that only candidates acceptable to the Communist Party could run for election as Hong Kong’s top leader.

But Hong Kongers were unprepared for the coming of President Xi Jinping of China, the architect of another frightening crackdown far away on the mainland.

In 2017, I started to receive reports that Uyghurs and other Turkic Muslim minorities were disappearing into “ political education” camps in the northwestern region of Xinjiang . People who had managed to get out told me how Xinjiang’s borders were suddenly closed, escape was becoming impossible and speech or behavior that was once acceptable — like simply praying at a neighbor’s house — could get you jailed. Officials would enter homes to inspect books and decorations. Uyghurs were discarding copies of the Quran or books written in Arabic, fearing they would be disappeared or jailed for insufficient loyalty to the Chinese Communist Party. One man told me he had burned a T-shirt with a map of Kazakhstan on it — many of Xinjiang’s inhabitants are ethnic Kazakhs with family members across the border — because any foreign connection had become risky.

As these stories of repression and fear emerged from Xinjiang, they were instantly recognizable in Hong Kong. In 2019, the city’s government proposed a bill that would have allowed extradition to China. Fear and anger — and the feeling that Hong Kong people needed to make one last stand while they could — exploded in months of protest .

One of the 2019 protest slogans — “Today’s Xinjiang is tomorrow’s Hong Kong”— sounded to me like hyperbole at the time. Now, five years later, it feels prescient. Today, it’s Hong Kongers who are disposing of dangerous books and T-shirts. Some people I know have quietly left an online chat group that includes foreign organizations and individuals; such contact could put the group’s Hong Kong members at risk. Others are quitting social media; tens of thousands have already left Hong Kong.

After Beijing imposed the National Security Law in Hong Kong in 2020, it used the law to decimate the city’s pro-democracy movement by jailing its leaders. More than 1,000 people remain in jail. Fearful of arrest, independent labor unions and media outlets disbanded. Libraries pulled hundreds of books off shelves. Films and plays were censored. Civil servants can no longer stay neutral and are forced to pledge allegiance to the government.

Both the National Security Law and Article 23, passed last week, are broad, vague and blunt instruments intended to critically wound civil liberties and transform institutions that protected people’s freedoms into tools of repression. Under Article 23, anyone found guilty of participating in a meeting of a “prohibited organization” or who discloses “unlawful” and vaguely defined “state secrets” could face a decade behind bars.

Beijing has couched this repression in terms like “the rule of law,” and visitors to Hong Kong often fail to recognize the transformations taking place beneath the enduring glitz of the city. That leaves the rest of the world detached from the reality on the ground — unable to sympathize with Beijing’s victims or to feel their breathlessness under this growing weight.

One acquaintance in Hong Kong told me that people he knew had become blasé about their sudden loss of freedom and were just coldly watching the destruction of the city and what it stood for. But others, toughened over the years, still express hope and defiance. The solidarity forged through nearly two decades of widespread activism won’t die easily. A Pew Research Center survey this month found that more than 80 percent of Hong Kongers still want democracy, however remote that possibility looks today.

The Chinese government wants the world to forget about Hong Kong, to forget what the city once was, to forget Beijing’s broken promises. But Hong Kong’s people will never forget. Don’t look away.

Maya Wang (@wang_maya) is acting China director for Human Rights Watch.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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The Current Attack on Abortion Pills Will Fail. The Next One Will Be So Much Worse.

There are always a couple of tells when the most conservative Supreme Court in more than a century finds itself adjudicating a truly mortifying and meritless case. One is that it’s coming up by way of the U.S. Court of Appeals for the 5 th Circuit, a court that so consistently shovels its worst constitutional garbage upward that the high court conservatives are often forced to reluctantly lob it back. Another tell is when the facts of the case are so laugh-out-loud insane that even conservative justices can’t bring themselves to adopt them or the underpinning legal reasoning with a straight face. There’s yet a third tell: when the conservative justices start injecting a bunch of nonsense and randomized pet peeves into oral argument to distract from how embarrassing it would be to discuss the merits of the actual case.

All three tells were present Tuesday morning, when the court heard FDA v. Alliance for Hippocratic Medicine , a challenge to the current medication abortion regime nationwide. This case is about a handful of physicians seeking to wield their “conscience objections” to abortion as a cudgel against everyone’s access to safe reproductive care throughout the country. So, it was heartening to see that the majority of the Supreme Court doesn’t have the conscience to take it seriously. It was harrowing, however, to hear at least two justices embrace the plaintiffs’ foundational theory: that a long-defunct federal law already bans medication abortion, and maybe procedural abortion as well—and that the courts can revive this ban once they get their hands on the right case.

Before we reach the doomsday scenario, let’s start with the case at hand, which is laughable to the point of frivolity. In 2000 the Food and Drug Administration approved mifepristone, the first drug in a medication abortion. Initially, and under huge pressure , the agency imposed tight restrictions on the drug, including mandatory doctor’s visits, in-person dispensing requirements, and strict limits on pharmaceutical availability. Over the next 23 years, the FDA loosened these rules, concluding—based on extensive studies—that they did not improve health outcomes for patients. Today, in blue states, mifepristone can be prescribed via telemedicine and mailed to a patient’s home. It remains almost entirely illegal in the 14 states that have outlawed abortion.

The plaintiffs in Alliance for Hippocratic Medicine are a group of anti-abortion physicians who do not prescribe mifepristone. Rather, they worry that someday, some patient who has taken mifepristone prescribed by a different doctor might have serious adverse complications and end up in their care—forcing them to be “complicit” in abortion simply by treating the patient. These physicians claim that the only solution to their speculative fear is a nationwide ban on mifepristone, achieved through a judicial order that revokes the FDA’s approval of the drug for everyone. As Justice Ketanji Brown Jackson put it Tuesday, the case reflects a “mismatch” between the harms alleged and the remedy demanded: “They’re saying, ‘Because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.’ ”

In a saner judiciary, the case would have been booted out of the courthouse with prejudice, because the plaintiffs have neither sustained nor suffered an injury: They are merely speculating about the possibility of a future harm, which does not establish standing under Article 3 of the Constitution. And that possibility really is quite remote, since mifepristone has been proved safe in more than 100 scientific studies.

Alliance Defending Freedom, the far-right, Christian nationalist organization that represents the plaintiffs, knows that this theory of standing violates every rule in the book. So it brought the lawsuit in Amarillo, Texas, where it was guaranteed to draw Judge Matthew Kacsmaryk, a Donald Trump appointee who has devoted his life to criminalizing abortion, along with other theological battles. Kacsmaryk attempted to issue a nationwide ban on mifepristone, which the 5 th Circuit whittled down, allowing the drug to remain legal while reimposing the immense burdens that would put it out of reach for countless patients. But the Supreme Court froze the 5 th Circuit’s order last year, sending a signal that a majority would not play ball with this humiliating mess of a case. Arguments on Tuesday confirmed that most justices remain skeptical toward ADF’s “We’re scared we might have to treat abortion providers’ patients” theory of cognizable harm and standing.

Lurking under the embarrassment of these standing arguments about wholly speculative harms lies the embarrassment of the scientific claims proffered to support them. To show that mifepristone is actually super dangerous, Kacsmaryk and the 5 th Circuit relied on junk science peddled by shameless hucksters. As Jessica Ellsworth, representing the maker of mifepristone, told the justices: “You have a district court that, among other things, relied on one study that was an analysis of anonymous blog posts. You have another set of studies that he relied on that … have since been retracted for lack of scientific rigor and for misleading presentations of data.”

Lurking beneath that embarrassment lies the fact that if the plaintiffs were allowed to prevail in this case, pharmaceutical companies and the FDA would be subject to fanciful challenges by anyone who has ever objected to a drug. Mifepristone, recall, has been safely used by millions of Americans and is less dangerous than Tylenol and Viagra. Thousands of other drugs pose greater safety risks yet remain on the market, indeed sold over the counter, because experts have concluded that the benefits outweigh the dangers.

If Kacsmaryk and the 5 th Circuit are correct, then any doctor can waltz into court and secure a nationwide injunction against a drug they dislike on the grounds that they might one day treat a patient who takes it. Further, the FDA’s review process, the global gold standard for drug approval, would fall apart—which is why the biopharma industry has lined up on the government’s side. The consequences for development and testing of new drugs would be catastrophic. Jackson acknowledged as much when she asked Ellsworth to describe “concerns about judges parsing medical and scientific studies” without any “specialized scientific knowledge with respect to pharmaceuticals.”

In the face of this skepticism, Erin Hawley—an ADF lawyer and wife of Jan. 6 rally boy Sen. Josh Hawley—struggled to explain the reason why a handful of activist physicians should be able to ensure that every woman in America is denied access to mifepristone. Her answer? They don’t want to be “complicit” in abortion. The problem here is that these doctors are already amply protected from coercion in abortion care by federal and state conscience laws, as Solicitor General Elizabeth Prelogar assured Justice Brett Kavanaugh. They are welcome to walk away from an abortion patient in need of their follow-up care. Even Justices Neil Gorsuch and Amy Coney Barrett and Chief Justice John Roberts appeared to be embarrassed with the slurry of bad plaintiffs and worse evidence that Hawley paraded before them as a serious legal challenge. As usual, when it was clear that the case was too asinine to contemplate, what surfaced instead was a protracted gripe about nationwide injunctions from Gorsuch and aggrieved grousing from Justice Samuel Alito, who sounded annoyed that ADF hadn’t cooked up a more plausible case.

Alito and Justice Clarence Thomas are never ones to let an embarrassment of a lawsuit go to waste. And they were openly eager to embrace the chilling argument at the heart of ADF’s case: the notion that the Comstock Act of 1873 prohibits the distribution of abortion pills and perhaps even equipment used for procedural abortions. Under this theory, abortion is already a criminal offense under federal law, and every abortion provider in the country may be prosecuted and imprisoned immediately. Conservative groups like the Heritage Foundation are already urging Trump to issue an executive order on Day 1 banning medication abortion. Republican lawyers are preparing to use the Comstock Act to prohibit all abortions , not just pills. This reading of the zombie relic is so broad that a Justice Department and judiciary hostile enough to reproductive freedom could contort it to make all abortion care a felony.

Predictably on Tuesday, and with a case built of vapors to work with, Alito and Thomas went full Comstock. Alito scolded the FDA for letting providers mail abortion pills despite the existence of the law. “This is a prominent provision,” the justice told Prelogar. “It’s not some obscure subsection of a complicated, obscure law. They knew about it. Everybody in this field knew about it.” Thomas warned Ellsworth that her client, the maker of mifepristone, lacked a “safe harbor” from prosecution over Comstock. “It’s fairly broad, and it specifically covers drugs such as yours,” he told her. (That claim is very much in dispute .) Alito and Thomas know they will likely lose this case, so they’re preparing for the next one. Maybe Trump will win and commence Comstock prosecutions. Maybe Kacsmaryk will issue a new ban on mifepristone at the behest of red states, as he is currently threatening to do . Either way, Comstock is racing toward the Supreme Court. And two justices have already aligned themselves with a sweeping interpretation of its puritanical prohibitions.

The FDA looks poised to win this silly case at the Supreme Court in June, but we cannot let the case’s silliness obscure all the future damage it tees up—to the practice of medicine, to women’s health, and to the credibility of a Supreme Court that once cared about credibility. Whenever a door closes on the worst MAGA toxins at this court, an Overton window opens to something so much worse. Health care professionals, biopharma companies, and reproductive rights advocates can cheer the probable outcome of Alliance for Hippocratic Medicine . But they can spare only a moment’s rest because Thomas and Alito, with the help of bad actors like ADF and Kacsmaryk, are already bringing the next battle to their doorstep.

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The Current Attack on Abortion Pills Will Fail. The Next One Will Be So Much Worse.

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