Totes-Isotoner Corp. v. United States (Fed. Cir. Feb. 5) says no, though one judge took a different approach from the other two. Any thoughts on what the right analysis should be? I’m inclined to say that the different treatment is facially discriminatory — even though the distinction is based on the sex of the likely wearers of the gloves, and not necessarily based on the sex of the buyers of the gloves — and not just something that has a disparate impact. But I’m not entirely sure of this, and would love to hear your thoughts, especially if you know a good deal about the constitutional law of sex discrimination.
By the way, I take it that we’d agree that stores that specialize in men’s clothes or in women’s clothes shouldn’t be seen as public accommodations that illegally discriminate based on sex (in those states whose public accommodations law covers retail stores and sex discrimination). But should that be because this isn’t really sex discrimination, or because the statutes ought to have, or ought to be read as having, an exception for such behavior?