Excluding Women from Advertisements: Between Public and Private

Abstract

Advertisers in Israel routinely omit representation of women and girls as a form of adaptation to norms prevalent among ultra-Orthodox Jewish communities, by which the representation or allusion to a woman’s body, voice, or garments is considered immodest and distracting. What, if any, should be the response of antidiscrimination law to exclusionary advertisements, and why is this question worth exploring? This article argues that laws banning discrimination in the provision of products and services should also apply to advertisements that categorically refrain from presenting women. Beyond protecting individual members of vulnerable groups, antidiscrimination law should partake in freeing the public sphere of messages that reinforce discriminatory values. The intended, overt, and complete denial of women’s existence merits the law’s intervention in commercial speech. After conceptualizing the harm caused to unspecified individuals and defining discriminatory advertisements, we outline the considerations that should guide the designing of rules against discriminatory ads and apply them to a set of real-life incidents of exclusionary advertisements, demonstrating how to assess the severity of discrimination in each case. Finally, we consider the free speech implications, as well as the argument that liberal multicultural accommodation renders “modest” advertisements legitimate.