The Volokh Conspiracy - Affirmative Action (in the Sense of Exemption from Antidiscrimination Law) for Gay Venues?

From Peel Hotel Pty Ltd., Victorian Civil & Administrative Tribunal, VCAT 916 (24 May 2007) (some paragraph breaks added):

8 The Peel is a hotel and social venue. It primarily provides (as well as its hotel services) dancing and music. It is very popular. It has many hundreds of patrons on weekend nights (including Fridays). Over a week, it will have thousands of patrons.

9 The Peel aims to provide its facilities primarily for gay men. While is has marketed itself primarily to the gay male community, it has not hitherto sought exemption from the EO Act because it was believed that it could operate in a way that welcomed all, excluded none, but focused on or was aimed primarily at gay male patrons. It has this focus because it seeks to provide a safe, non-threatening, comfortable and enjoyable social environment for the gay male community.

10 I accept Mr McFeely's evidence that providing such an environment is important for a number of reasons. Although gay men are now less at risk than they were in the past to various issues and behaviours, there are still instances of sexuality-related violence, insult, ostracism, derision, harassment and hostility. These are directed to gay men by other members of the community. Some of these occur when gay men display towards each other what society would tolerate among heterosexuals behaving as a couple --- kissing, hugging, or expressing love, attraction or affection in a physically intimate way. This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence. It provides an atmosphere where they can express themselves physically or sexually in a way that would be acceptable among men and women in a mixed sex venue.

11 The venue aims to provide gay men with the same opportunities as mixed sexes have in the venues to which I have referred. There are many thousands of these venues across the Melbourne CBD....

13 The venue has operated without difficulty for many years. It is an all-night venue, operating from 9pm until dawn. It has live music and no cover charge. Perhaps because of these factors, increasing numbers of heterosexual men and women and lesbians have particularly over the past year asked to enter the venue. A number of difficulties have arisen. I accept Mr McFeely's evidence and Sergeant Mercer's evidence about these.

14 If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to "swamp" the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely's affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group's enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.

15 I accept Mr McFeely's evidence that there are a large number of alternative venues which provide similar kinds of services to that provided at the Peel Hotel. These venues can be attended by people of any sex, any sexual orientation or any gender identity. I also accept his evidence that there are a very significant number of venues which market their services to lesbians. The Glasshouse, which is a venue close to the Peel Hotel, is one of these.

16 The Peel does not wish to have an all-male or all-gay male environment. It simply wishes to preserve its primarily gay male environment and its non-threatening atmosphere in which gay males can feel comfortable to express affection, physical intimacy or sexuality in a way that will not make them a target of derision, hostility or criticism and where that behaviour might, if expressed in a mixed sex venue, lead to that hostility, derision or criticism.

Should the exemption be granted?

17 In my view, it should.... There is no express exception provision which clearly applies. However, the application is in the spirit of those express exception provisions which seek to allow special measures to be taken to redress disadvantage suffered by those with a particular attribute. An example of these is s82.

18 The exemption promotes that objective of the Act which is to promote the recognition and acceptance of everyone's right to equality of opportunity. It seeks to give gay men a space in which they may, without inhibition, meet, socialise and express physical attraction to each other in a non-threatening atmosphere, in a way that heterosexual couples have in mixed sex venues.

19 It is also consistent with the scheme of the Act. The Act now includes attributes of sexual orientation and gender identity. It has always included the attribute of lawful sexual activity. The objective concerning the recognition and acceptance of equality of opportunity applies equally to all attributes, including these three. Just as it is consistent with the Act's objective to provide special measures to redress disadvantage suffered by, for example, women or those with disability, so also is it consistent with that objective to provide this venue for those with a particular sexual orientation.

20 The exemption also seeks to prevent discrimination against gay men, for whom this venue is designed. The anti-social behaviour which would be at the heart of a decision to refuse or restrict entry to groups of heterosexuals or lesbians is sexuality-based behaviour and includes sexuality-based insults and derision. It would be most unfortunate if at this venue, gay men were subjected to the very behaviour that the venue seeks to protect them from.

I would add that I take a similar view of the restriction or refusal of entry to those groups who wish to use the venue for "hens' nights" and the like, where they wish to use the gay male patrons as a form of entertainment. To regard the gay male patrons of the venue as providing an entertainment or spectacle to be stared at as one would at an animal at a zoo, devalues and dehumanises them. It is, although subtle, another form of sexuality-based humiliation or discrimination. In my view, it is appropriate to grant the exemption.

A few thoughts:

(1) I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that.

I take it that the bouncers at the nightclub don't have perfect gaydar; I doubt they'd evict a group of would-be harassers (likely an all-male group, I'd expect) because they can tell the harassers aren't gay. They'd evict them because they're being violent or insulting. Why then not just have a policy of evicting the violent.

(2) If the concern is about gays' discomfort with being viewed in a certain way, isn't that close kin to the concern that has long been used to support discrimination against gays? (A) Some straight men don't like feeling that they are being viewed with lust by some gays. (B) Some gay men don't like the feeling that their social activities are being viewed as entertainment by some women.

The premise of bans on sexual orientation discrimination is that attitude (A) is no reason to exclude people from public places based on sexual orientation: If you don't like what you think someone is thinking when he's looking at you, deal with it, don't have him kicked out. Why should attitude (B) be any more persuasive a justification for discrimination?

(3) If the concern is about gays wanting to be in a predominantly gay environment, my sense is that successful gay venues can generally accomplish this just fine without kicking out nongays. Such venues tend to disproportionately attract gays, and while there are occasional outsiders visiting, the repeat business will largely be those people who feel most comfortable in the environment, and most interested in the environment. (Maybe I'm too influenced by having lived near West Hollywood for so long, though; I'd love to hear what others with other experiences have to say about this.) And even if for some reason too many straights show up and the venue stops being seen as having "the atmosphere which the company wishes to create," I don't quite see why maintaining a mostly-gay atmosphere is any stronger a justification for discrimination than maintaining an all-straight atmosphere, an all-male atmosphere, an all-female atmosphere, an all-Armenian atmosphere, or whatever else.

(4) One can debate whether bans on sexual orientation discrimination (or other discrimination) in privately owned public places are sound. But it seems to me that the project of persuading people to treat people equally without regard to sexual orientation will be more retarded than advanced by having the antidiscrimination law itself discriminate. Even if there are exceptions to this, and one accepts "affirmative action" justifications for special treatment for historically disfavored groups, it seems to me that there ought to be at least some powerful and factually supported reason for any particular justification. I don't see much such reason here.

	[Eugene Volokh, May 30, 2007 at 5:27pm] Trackbacks Affirmative Action (in the Sense of Exemption from Antidiscrimination Law) for Gay Venues? From Peel Hotel Pty Ltd., Victorian Civil & Administrative Tribunal, VCAT 916 (24 May 2007) (some paragraph breaks added): 8 The Peel is a hotel and social venue. It primarily provides (as well as its hotel services) dancing and music. It is very popular. It has many hundreds of patrons on weekend nights (including Fridays). Over a week, it will have thousands of patrons. 9 The Peel aims to provide its facilities primarily for gay men. While is has marketed itself primarily to the gay male community, it has not hitherto sought exemption from the EO Act because it was believed that it could operate in a way that welcomed all, excluded none, but focused on or was aimed primarily at gay male patrons. It has this focus because it seeks to provide a safe, non-threatening, comfortable and enjoyable social environment for the gay male community. 10 I accept Mr McFeely's evidence that providing such an environment is important for a number of reasons. Although gay men are now less at risk than they were in the past to various issues and behaviours, there are still instances of sexuality-related violence, insult, ostracism, derision, harassment and hostility. These are directed to gay men by other members of the community. Some of these occur when gay men display towards each other what society would tolerate among heterosexuals behaving as a couple --- kissing, hugging, or expressing love, attraction or affection in a physically intimate way. This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence. It provides an atmosphere where they can express themselves physically or sexually in a way that would be acceptable among men and women in a mixed sex venue. 11 The venue aims to provide gay men with the same opportunities as mixed sexes have in the venues to which I have referred. There are many thousands of these venues across the Melbourne CBD.... 13 The venue has operated without difficulty for many years. It is an all-night venue, operating from 9pm until dawn. It has live music and no cover charge. Perhaps because of these factors, increasing numbers of heterosexual men and women and lesbians have particularly over the past year asked to enter the venue. A number of difficulties have arisen. I accept Mr McFeely's evidence and Sergeant Mercer's evidence about these. 14 If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to "swamp" the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely's affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group's enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons. 15 I accept Mr McFeely's evidence that there are a large number of alternative venues which provide similar kinds of services to that provided at the Peel Hotel. These venues can be attended by people of any sex, any sexual orientation or any gender identity. I also accept his evidence that there are a very significant number of venues which market their services to lesbians. The Glasshouse, which is a venue close to the Peel Hotel, is one of these. 16 The Peel does not wish to have an all-male or all-gay male environment. It simply wishes to preserve its primarily gay male environment and its non-threatening atmosphere in which gay males can feel comfortable to express affection, physical intimacy or sexuality in a way that will not make them a target of derision, hostility or criticism and where that behaviour might, if expressed in a mixed sex venue, lead to that hostility, derision or criticism. Should the exemption be granted? 17 In my view, it should.... There is no express exception provision which clearly applies. However, the application is in the spirit of those express exception provisions which seek to allow special measures to be taken to redress disadvantage suffered by those with a particular attribute. An example of these is s82. 18 The exemption promotes that objective of the Act which is to promote the recognition and acceptance of everyone's right to equality of opportunity. It seeks to give gay men a space in which they may, without inhibition, meet, socialise and express physical attraction to each other in a non-threatening atmosphere, in a way that heterosexual couples have in mixed sex venues. 19 It is also consistent with the scheme of the Act. The Act now includes attributes of sexual orientation and gender identity. It has always included the attribute of lawful sexual activity. The objective concerning the recognition and acceptance of equality of opportunity applies equally to all attributes, including these three. Just as it is consistent with the Act's objective to provide special measures to redress disadvantage suffered by, for example, women or those with disability, so also is it consistent with that objective to provide this venue for those with a particular sexual orientation. 20 The exemption also seeks to prevent discrimination against gay men, for whom this venue is designed. The anti-social behaviour which would be at the heart of a decision to refuse or restrict entry to groups of heterosexuals or lesbians is sexuality-based behaviour and includes sexuality-based insults and derision. It would be most unfortunate if at this venue, gay men were subjected to the very behaviour that the venue seeks to protect them from. I would add that I take a similar view of the restriction or refusal of entry to those groups who wish to use the venue for "hens' nights" and the like, where they wish to use the gay male patrons as a form of entertainment. To regard the gay male patrons of the venue as providing an entertainment or spectacle to be stared at as one would at an animal at a zoo, devalues and dehumanises them. It is, although subtle, another form of sexuality-based humiliation or discrimination. In my view, it is appropriate to grant the exemption. A few thoughts: (1) I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that. I take it that the bouncers at the nightclub don't have perfect gaydar; I doubt they'd evict a group of would-be harassers (likely an all-male group, I'd expect) because they can tell the harassers aren't gay. They'd evict them because they're being violent or insulting. Why then not just have a policy of evicting the violent. (2) If the concern is about gays' discomfort with being viewed in a certain way, isn't that close kin to the concern that has long been used to support discrimination against gays? (A) Some straight men don't like feeling that they are being viewed with lust by some gays. (B) Some gay men don't like the feeling that their social activities are being viewed as entertainment by some women. The premise of bans on sexual orientation discrimination is that attitude (A) is no reason to exclude people from public places based on sexual orientation: If you don't like what you think someone is thinking when he's looking at you, deal with it, don't have him kicked out. Why should attitude (B) be any more persuasive a justification for discrimination? (3) If the concern is about gays wanting to be in a predominantly gay environment, my sense is that successful gay venues can generally accomplish this just fine without kicking out nongays. Such venues tend to disproportionately attract gays, and while there are occasional outsiders visiting, the repeat business will largely be those people who feel most comfortable in the environment, and most interested in the environment. (Maybe I'm too influenced by having lived near West Hollywood for so long, though; I'd love to hear what others with other experiences have to say about this.) And even if for some reason too many straights show up and the venue stops being seen as having "the atmosphere which the company wishes to create," I don't quite see why maintaining a mostly-gay atmosphere is any stronger a justification for discrimination than maintaining an all-straight atmosphere, an all-male atmosphere, an all-female atmosphere, an all-Armenian atmosphere, or whatever else. (4) One can debate whether bans on sexual orientation discrimination (or other discrimination) in privately owned public places are sound. But it seems to me that the project of persuading people to treat people equally without regard to sexual orientation will be more retarded than advanced by having the antidiscrimination law itself discriminate. Even if there are exceptions to this, and one accepts "affirmative action" justifications for special treatment for historically disfavored groups, it seems to me that there ought to be at least some powerful and factually supported reason for any particular justification. I don't see much such reason here.