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Single-Sex Exercise:

I blogged yesterday about why I think women-only exercise hours at a Harvard pool don't violate Massachusetts law. I'm inclined to also think that they don't violate Title IX, because they don't deal with discrimination in educational activities. It's not clear whether an accompanying requirement that the attendants working at the pool during those hours be women would violate employment discrimination law; that turns on whether sex is a bona fide occupational qualification in that kind of situation, a matter that is not certain.

But I want to briefly touch on the broader policy questions: Should it be illegal for various organizations — whether health clubs generally or exercise facilities at universities — to provide single-sex exercise facilities? I'm inclined to say the answer is no.

1. To begin with, antidiscrimination law, especially as applied to nongovernmental entities, imposes substantial governmentally coerced burdens on liberty and choice, both of businesses (and similar nonbusiness entities) and of would-be patrons. In this kind of situation, the burden is chiefly on those people (men and women) who prefer single-sex exercise over mixed-sex exercise. That's a serious cost of any such law. This cost may be outweighed by various benefits, but we shouldn't forget the cost, nor just categorically assume that nondiscrimination based on various attributes must inherently be the rule everywhere.

2. In particular, I think the case for banning sex discrimination in places of public accommodation is fairly weak. Such discrimination rarely has major effects on people's lives, economic opportunities, educational options, and the like. Federal public accommodations law doesn't ban sex discrimination; state laws in Kentucky, South Carolina, and possibly Nevada (plus likely other places — I just took a quick look) don't, either. Whatever problems men or women may face in those states, I doubt that they stem from rampant discrimination in public accommodations based on sex.

In some situations, public accommodations discrimination based on sex may affect economic opportunities; this was a major argument for banning sex discrimination in clubs and social organizations that could be used for networking. I'm not sure that this is reason enough to ban such discrimination — people network over dinner with acquaintances, in church, and for that matter in bed, but that isn't reason enough to ban discrimination in socializing, religion, and sex. But even if one does think that some clubs should be required to open up to women as well as men, perhaps because government coercion in club socializing isn't as harmful to rights of association as government coercion in nonclub socializing (and because such coercion is needed to reduce economic barries to women), that should be the exception, not the rule.

Little harm is caused when, say, a hair stylist wants to serve only women (or only men), or a family lawyer wants to specialize in representing wives rather than husbands, or a bar offers a ladies' night discount to bring in more women (and thus indirectly help many of its male patrons). And a good deal of harm to individual choice is caused by banning such discrimination.

3. Yet even setting aside the general point in item 2, I think tolerating sex discrimination in health clubs and the like is especially appropriate. Exercise wear understandably tends to the relatively scanty or revealing (swimwear, for instance, can be revealing even when not scanty). It tends to show skin and figure, and it tends to show things that the wearer sees as flaws. Many women understandably don't like being viewed by male strangers is such situations, either because the women don't want to feel they are being lustfully ogled, or because they don't want to feel they are being harshly judged. The same may be true of some men who might prefer not to be viewed by female strangers (though I expect more on the "harshly judged" concern than the "lustfully ogled" one).

So I think there are eminently legitimate privacy-like concerns here — obviously not as strong as in the shower room or the locker room, but still pretty substantial. They may be especially felt by some Muslim women, but my guess is that many other women would have similar concerns, whether because of religion, nonreligious modesty concerns, vanity, or some mix.

Coercive governmental restrictions on single-sex exercise facilities are thus especially burdensome. And such restrictions strike me as providing especially low benefits. Even if women-only and men-only exercise facilities were allowed, I'm pretty sure that there'd still be plenty of places where women and men can exercise. (Even if the facts are otherwise, then at least some sorts of women-only and men-only times should be allowed.) Nor do I think that many women, for instance, would be professionally handicapped because they can't effectively network with men given that a few health clubs will become men-only (and I imagine they'd only be a few). It's thus quite right, I think, that some statutes (for instance, in Illinois, in some measure in Massachusetts, and I'd guess in many other states) and at least one court decision (in Pennsylvania) exempt health clubs from antidiscrimination law.

4. Finally, what about government funding? Should the law bar discrimination in places that are indirectly supported by government funds (as most universities are)? I don't think so: When the government consumes 25-30% of the GNP, and spends that money in a vast range of ways, I don't think a private institution's getting some government benefit — especially under an evenhanded program available to everyone — should generally affect the analysis.

All nonprofits, for instance, get a de facto subsidy through the tax deduction for charitable contributions. This means that religious institutions, including ones that provide benefits only for coreligionists, end up getting the economic equivalent of matching funds for the contributions they get. Should we be worried about that? I don't think so, especially when there's reason to think that the benefited programs in the aggregate serve a wide range of groups. Likewise, if some health clubs that get some indirect government benefits (e.g., because they are paid for by universities that get some government grant money) allow both sexes, some allow only men, some only women, and some women during certain hours and both sexes during other hours, that seems just fine to me.

5. So, the bottom line: Single-sex exercise should be tolerated, both by government, and (for some of the same reasons I mention above) by social norms. That's true whether people want it because they're Muslim, because they're from other religions that stress modesty, because they have nonreligious modesty concerns, or just because they think their bodies aren't yet good enough that they'd be comfortable having members of the opposite sex stare at them. The law shouldn't coercively interfere with people's ability to choose single-sex exercise programs, and with businesses' or organizations' ability to offer such choices.

Duncan Frissell (mail):
such restrictions strike me as providing especially low benefits

Those who seek such restrictions (as Massachusetts courts did before the legislature reversed) see the major benefit of breaking down sex differentiation and reprogramming the population to believe that sex differences are a social construct. That is a major benefit for those seeking to transform mankind (oops! personkind) into plastic blobs that can be reshaped at will to serve the coercive state apparatus.

Major benefit (for some).
3.6.2008 8:10pm
Drill SGT:

I'm inclined to also think that they don't violate Title IX, because they don't deal with discrimination in educational activities.


EV,
If this creates no title IX, then why can't a school add Men's wrestling and drop women's field hockey based on the clearly larger demand for male sports by the students?

1. why is increasing gym opportunities for women different than increasing sport opportunities for men?

2. noting that women are the majority on campus now, don't the men deserve more protection than they did in say 75?
3.6.2008 8:20pm
GMUSL '07 Alum (mail):
I'm inclined to also think that they don't violate Title IX, because they don't deal with discrimination in educational activities.

So Eugene, what's the difference between that and saying that Title IX doesn't apply to athletics at all? Let's bring back the wrestling teams!
3.6.2008 8:21pm
thatguy (mail):
My university, a Catholic one, had womens-only gym hours when i was there mid-to-late 90's, and it was explained as being so that women could exercise without being stared at, etc... i didn't have any problem with it, as it was not to kowtow to any muslim nonsense, i could understand especially, since when one is, shall we say, 'not so fit' one might feel overly self-conscious in an exercise situation surrounded by ones peers.
3.6.2008 8:31pm
NYU 3L:
In Beachwood, OH, where I grew up, the city's public pool has single-sex hours for Orthodox Jews who, for modesty purposes, will not swim in mixed sex groups (Beachwood is a suburb with lots of Jews, but Orthodox Jews are a fairly small minority). I see no problem with Harvard doing something similar, even if explicitly aimed at accommodating Muslims.
3.6.2008 9:07pm
riptide:
separate but equal is not equal
3.6.2008 9:11pm
Eugene Volokh (www):
1) My sense is that the distinction for Title IX purposes would be between educational activities (such as organized sports) and other activities (such as gyms open to students, faculty, staff, and alumni).

2) I'm not a Title IX maven, but I would think that if Title IX did apply, it would authorize single-sex hours in the gym just as it authorizes single-sex teams -- though perhaps it might require single-sex men-only hours to match the single-sex women-only hours.

3) Riptide: I'm not sure slogans like this will take you far. For instance, I take it that you'd oppose "separate but equal" restrooms for blacks and whites -- but does it follow that we should oppose such restrooms for men and women? Race and sex aren't necessarily the same for legal purposes, ethical purposes, or other purposes.
3.6.2008 9:35pm
Gaius Obvious (mail):
Eugene, the exact same arguments about modesty and not wanting to be ogled in intimate situations can be used to argue for excluding homosexuals from military service. What's the difference? Indeed, the argument in the military would seem to be stronger due to the many situations where there is forced intimacy, at least in Harvard one has a choice of other facilities. No so in a communal shower in Bagram.
3.6.2008 9:57pm
Eugene Volokh (www):
There are several, but I should think the obvious difference is the magnitude of the burden on the discriminated-against (as well as on the institution).

The Harvard swimming pool plan: You have to swim at a different time than you might prefer.

Broader sex discrimination in health clubs: You have to go to a different health club.

Exclusion of gays from the military: Gays are completely foreclosed from being allowed to serve in the military. The military loses a considerable number of talented, often already well-trained soldiers.

Kind of a substantial difference, no?
3.6.2008 10:12pm
tvk:
A couple of thoughts:

1. Your points make a certain amount of sense, that not all sex discrimination is created equal. Discrimination against women in employment is more likely to be harmful than discrimination against men in health club choice. But that is a real slipperly slope, one that is found in many debates about affirmative action. Essentially, your argument is that some types of "benign" discrimination is OK. And that cuts very strongly against the blindness argument that is at the core of anti-discrimination law.

To take the most extreme example, if I create a religion that is racist, so that white women feel especially insulted showing their bodies to black men, then under your analysis it would be ok for the club to both discriminate on race and sex. After all, the core "cost" of discrimination is mental anguish. And the only difference between whether not wanting you body ogled by men or by blacks is acceptable is a matter of the prevailing social attitudes. Analytically I am not sure there is a sound distinction.

2. Your point about the military seems to be a familiar "level of generalities" dodge:

The Harvard swimming pool plan: You have to swim at a different time than you might prefer; i.e. you are completely foreclosed from the time you do prefer.

Broader sex discrimination in health clubs: You have to go to a different health club; i.e. you are completely excluded from the club you do prefer.

Exclusion of gays from the military: You are excluded from your preferred career path; but you can choose any other of numerous potential careers.

Simply slapping "completely foreclosed" is not helpful. Any discrimination "completely forecloses" a relevant choice; and there are always alternatives. It depends only on the level at which the choice is defined.
3.6.2008 10:34pm
Pol Mordreth (mail):
EV,
With all due respect, (and I agree with your assessment in general) the issue to me is that the state of Massachusetts has made it illegal for a private company to act this way. I could not open a gym in MA with these kind of rules, and so, this problem couldn't be solved by market forces. (you want to work out with only women? go to this gym) So, why is it okay for a university that is taxpayer supported to violate the spirit of the law of the state that it is in? This is classic sexual discrimination as identified by the MA supreme ct in Hassan and DiCenso v. City of Boston, et al., 20 MDLR 83.

Do I think that the ruling was wrong? yes. Is it the current law? Yes. So, if you want things like this to change, you have to point out how actions like Harvard's are in violation of the spirit of the law, if not the actual letter. And, a lot of that analysis hinges on the usage of the word 'public' in the statute.

Respectfully,
Pol
3.6.2008 10:53pm
David Hecht (mail):
I certainly have no quarrel with these arguments, Professor Volokh. I guess the thing I don't understand is, where was this line of reasoning when the courts were being used to coerce single-sex educational institutions such as VMI and the Citadel into admitting women, on the grounds that they were the recipients of public funds, and therefore were subject to anti-discrimination laws? Where was it when the Orthodox students at Yale requested single-sex housing as a matter of religious observance, and were told that living in a mixed-sex dorm was integral to the university experience?

For that matter, where were these arguments when Grove City and similar cases were being decided?
3.6.2008 11:01pm
David Chesler (mail) (www):
I agree with Pol, I think. "Should" is not the same as where the law is, or where the arguments carried to their reasonable conclusion lead.

I'm fairly libertarian - I think a private club "should" be able to discriminate on the basis of race, but that's not the state of the law. I'm not an expert on any sort of law, but this is the first I heard that Title IX didn't apply to athletics in an educational setting if they're not educational athletics.

If Harvard were saying "We've been wrong all along, men and women are not identical" that would be one thing, but they're trying to fit this action into years of saying there is no difference.
3.6.2008 11:07pm
Eugene Volokh (www):
Pol Mordreth, David Chesler: What do you think of my argument in the earlier post that Harvard's actions do not violate Massachusetts state antidiscrimination law?
3.6.2008 11:13pm
Randy R. (mail):
"Many women understandably don't like being viewed by male strangers is such situations, either because the women don't want to feel they are being lustfully ogled, or because they don't want to feel they are being harshly judged. The same may be true of some men who might prefer not to be viewed by female strangers (though I expect more on the "harshly judged" concern than the "lustfully ogled" one)."

Ha! If you only knew how many gay men work out at the gym! If you don't want to be oogled, then work out at home alone.

tvk: "Exclusion of gays from the military: You are excluded from your preferred career path; but you can choose any other of numerous potential careers. "

Yeah, really -- discrimination is perfectly okay against gays because, well, they are just so icky.
3.6.2008 11:40pm
Anonymous Hoosier:
EV makes a compelling case that single-sex gyms should be both lawful and tolerated. Harvard's actions nevertheless leave me uncomfortable for the following reasons:
1) it is a one-way accommodation, with no evident attempt to gauge the level of need or interest for men-only hours.
2) it is likely that Harvard would not have provided this accommodation if requested by a.) members of a Christian or Jewish religious group who expressed a similar need; b.) women who are being "uncomfortably ogled" by men; or c.) men who are being harassed by men.
3) it is an accommodation being provided to a particular religious group that frequently requests accommodations that we are much less comfortable with. For the reasons set forth with excellent rigor elsewhere by EV, this may or may not lead to slippery-slope concerns.
3.7.2008 12:19am
David Chesler (mail) (www):
Professor - If what you said about Haskins is accurate, Harvard is apparently not bound by ALM GL ch. 272, § 92A by that reason, even if it is not exempt under the Curves exemption Prof. Banzhaf notes.
§ 92A is not the only thing standing between Harvard and sex discrimination.
You say Title IX doesn't apply to the QRAC.
Harvard's own policies generally strongly favor gender-blindness, and that might be the more important issue here, how Harvard can have the general policy that way, but the accomodation this way, and not be hypocritical.
Maybe they can thread the needle that in general merely preferring the company of one's own sex is not enough, but if it's on account of sincerely-held religious beliefs then that is enough.

As for non-religious preferences for single-sex association, around the 1980s Harvard severed most remaining ties with the Final Clubs over that issue. IIRC, the biggest remaining tie was they were on the University phone system, and the Fly Club had had use of a vacant lot that was University-owned, and that became the site of the new Hillel. I believe the Final Clubs generally remain, and remain single-sex, and draw their membership from the Harvard student body.

I'd like to read what the current University policies and codes of conduct are with regard to sex.
3.7.2008 12:21am
ReaderY:
Fundamentally it's important that government be permitted to be pragmatic about these things, not to require it to be driven by ideology. There are significant religious expression concerns involved, in addition to the privacy-like concerns Professor Volokh notes and emphasizes. Society has to be permitted to work things out.

Characterizing "discrimination" as an undifferentiated moral evil prevents a pragmatic discussion. As I've pointed out in other contexts, doing so too zealously can lead to some of the same difficulties as sodomy laws.

It's also worth mentioning that society loses health benefits from people who don't exercise because they don't have a place they feel comfortable doing so, just it may lose educational or productivity benefits from people unable to study or work in a place where they feel comfortable and productive. Society loses when people who could be productive contributors become, because of that law, less productive and less able to contribute. Those laws must be weighed against the benefits, particularly when benefits are characterized in terms of ideological consistency or the psychological feeling that comes with seeing ones society denounce those things one perceives as evil (a benefit which is real, but not necessarily absolute).
3.7.2008 1:31am
Suzy (mail):
First, many schools offer exercise classes, sometimes even for credit, so is it obvious that what occurs in the gym is not an educational activity?

Second, assuming that single-sex access is acceptable, why should women be the only ones granted it? If single-sex dorms are a good idea, why wouldn't men be granted the opportunity as well as women? If single-sex gyms are justified in part because the physical attire is scanty, then why can't we extend the comparison to locker rooms further? We would not expect men to access only co-ed rooms, while women had the option of single-sex access.

Finally, if there is any justification for the difference, should it be on the grounds that exercise generally involves scanty clothing or personal bodily activities? We already have a choice about what to wear and how to move in public. Maybe Harvard needs to offer the choice of same-sex dance parties--or at least a few minutes set aside during the co-ed dances--since some people might wish to engage in the personal activity of dancing in figure-revealing attire, without being seen by the opposite sex.
3.7.2008 1:33am
David M. Nieporent (www):
I guess the thing I don't understand is, where was this line of reasoning when the courts were being used to coerce single-sex educational institutions such as VMI and the Citadel into admitting women, on the grounds that they were the recipients of public funds, and therefore were subject to anti-discrimination laws?
VMI and the Citadel were not "recipients of public funds." They were (are) state schools. Big difference.
3.7.2008 3:47am
David Chesler (mail) (www):
Fundamentally it's important that government be permitted to be pragmatic about these things, not to require it to be driven by ideology.
...
Characterizing "discrimination" as an undifferentiated moral evil prevents a pragmatic discussion.


I agree when it comes to arbitrary decisions (eg setting the tax rate) but anti-discrimination has been imposed upon private and public entities on just that basis, that it is always wrong (unless it's for so-called affirmative action, then it's OK.)

Sometimes government action or imposition depends on balancng tests. If that's the case here, what are the factors at play? Other than "I know it when I see it" when is discrimination (on the basis of sex, or for that matter on the bases of sexual orientation or race or ethnicity or veteran status or other variously protected conditions) acceptable?
3.7.2008 7:14am
Gaius Obvious (mail):
VMI and the Citadel were not "recipients of public funds." They were (are) state schools. Big difference.

Did you mean to type "private schools"? For both VMI and the Citadel are private institutions, not state schools.
3.7.2008 7:59am
Uthaw:
I'm tired of single-sex exercise. I need to get out more...
3.7.2008 8:39am
Aultimer:
Did the YMCA, YMHA and YWCA gyms and pools of the old days go co-ed because of antidiscrimination laws or the market?

Based on the existence of the Curves chains, I hope it's the latter.
3.7.2008 9:11am
jxr (mail):
As "Suzy" said. If the Harvard gym has "women only" hours, doesn't equal protection require equivalent "men only" hours?
3.7.2008 9:15am
Arkady:

Did you mean to type "private schools"? For both VMI and the Citadel are private institutions, not state schools.


From the VMI web page:


Virginia Military Institute (VMI), located in Lexington, Virginia, is a four-year undergraduate college founded in 1839. It is a member of the Commonwealth of Virginia's system of higher education. The Institute's governing body is the Board of Visitors whose members are appointed by the Governor.


From the Citadel's web page:


The Citadel, The Military College of South Carolina, is a unique public institution with the mission of educating principled leaders through its Corps of Cadets and College of Graduate and Professional Studies programs.


I think they're state schools.
3.7.2008 9:22am
NOLA lawyer:
I have a problem with places burdens on one group, because of "discomfort" that some women may feel. To me, this is no different than the IUPUI controversy: some people felt uncomfortable by conduct that wasn't directed toward them and forced other people to change to increase their comfort level.

Maybe if there has been a problem with "leering" and what not, this could be different. But to simply assume you will be ogled and therefore demand separate work out hours is absurd.

I can only bench press 50 lbs and always felt "uncomforable" working out in college with huge athletes. Should I have the opportunity to work out by myself a few hours a week?
3.7.2008 9:25am
Richard Nieporent (mail):
After learning about this decision, Nancy Hopkins first threw up and then she blacked out.
3.7.2008 9:43am
David Chesler (mail) (www):
Threadwinner Uthaw
3.7.2008 10:50am
Stacy (mail):
Eugene's arguments are indeed cogent and compelling, but we all know the reason we're debating this is because of who is asking for the women-only gym hours. When I was in undergrad a decade ago, the workout rooms all had women-only hours -- to which not a soul objected, though it was occasionally a scheduling hassle.

It does bring up another question though -- is it ever acceptable to object to something basically innocuous, because it has the appearance of representing a larger and objectionable agenda (for instance, muslim students seemingly seeking a foot in the door for their restrictive social mores)?
3.7.2008 10:50am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 03/07/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
3.7.2008 10:51am
calmom:
Accommodating religious beliefs should not place burdens on others. By doing so Harvard is favoring Muslim religious beliefs over the beliefs or non-beliefs of others. Too much accommodation discriminates in this case against men.
3.7.2008 11:03am
A.C.:
I'm on record on other threads as opposing college gyms across the board. Tuition is too high, and it covers a lot of extraneous stuff that many students would not choose to buy along with their education if they had the choice. Cutting frills to make education more affordable makes sense to me, and the students who want to join a gym can do so with part of the money they save.

But this whole argument provides even more support for my position. Why is there all this ogling in the first place? I work out in my neighborhood gym all the time, and ogling is not a problem.

I submit that the problem in college gyms (to the extent it exists at all) is a result of too much segregation rather than not enough. A whole gym full of people between the ages of 18 and 22 is a peculiar environment. That's a strange phase of life, and the people in it tend to behave in strange ways. Experimenting with extreme religion happens to be one of them, but we know the others.

The reason we don't have this problem in my neighborhood gym is that we have a lot of different kinds of people, of all ages. We get all races, kids, retired people, disabled people, athletes, obese people just starting to exercise, the local firemen, and even a fair number of fit young people at the peak of sexual attractiveness. There are people in spandex and people in hijab. It's normal, in short, and the mix keeps any sexual tension in check.

Campus activities with a limited age range are themselves artificial, and the artificiality introduces a problem that has nothing to do with the nature of exercise in general. So why have this artificial situation in the first place?
3.7.2008 11:27am
whit:
"Eugene's arguments are indeed cogent and compelling, but we all know the reason we're debating this is because of who is asking for the women-only gym hours. "

bull. yes, when in doubt play the "islam-o-phobia" card. y'know some people are actually concerned with equal treatment.

like others said, if you are going to have women only hours, then have equivalent men only hours.

it's solves the "problem" without being blatantly biased towards women.

"When I was in undergrad a decade ago, the workout rooms all had women-only hours -- to which not a soul objected, though it was occasionally a scheduling hassle. "

i would have objected. trust me. that's just how i am :)

"It does bring up another question though -- is it ever acceptable to object to something basically innocuous, because it has the appearance of representing a larger and objectionable agenda (for instance, muslim students seemingly seeking a foot in the door for their restrictive social mores)?"

except it's not "essentially innocuous".

but i feel strongly about these things. in 2nd grade we had a teacher who let the girls have the choice to stay inside or play during recess. the boys HAD to go outside.

i found this objectionable and complained to the teacher, but she used her Ultimate Authoritah to say no.

so, i know this has nothing to do with muslims because i didn't even know what a muslim was.

and i didn't even WANT to stay inside. i wanted to play outside. it was the principal of the thing

principals matter.

basically, how the left justifies these things is that it is ok in their eyes to discriminate FOR "oppressed" (so called) classes - women, brown people, bla bla bla

that's seen as ok.

it's not
3.7.2008 12:34pm
David Chesler (mail) (www):
Taking the side of the women, A.C., does the mix keep sexual tension in check well enough that the locker facilities are sex-integrated?

I grok tznius, and this particular modesty being ritual, case-by-case exceptions don't work.

I disagree that gyms shouldn't be part of a residential university, but even if they weren't, market services in college towns tend to have a very high concentration of those same 18-to-22-year-olds.

Desiring single sex is not unreasonable. If it is because it's a rule of one's religion, one may not be able to pick and choose, but even if it's purely personal choice it might be appropriate in a variety of situations for a variety of reasons. My issue is that this exception is coming from a sector that has strenuously insisted on full sex-blindness.

If we were going for reasonableness, and not principles, there might be zero men on campus who would benefit from men-only sessions. Probably none of the undergraduates had, in their lifetimes, single-sex gyms, so they aren't aware of how practical nudity can be in a pool or a sauna. (This has the unintended consequence that nudity becomes more sexualized.)
3.7.2008 12:42pm
Eugene Volokh (www):
Gaius Obvious: It turns out that VMI and the Citadel are indeed state-run institutions.
3.7.2008 12:46pm
A.C.:
David Chesler -

No, the locker rooms and saunas are single-sex. Very small boys occasionally turn up in the women's locker room with their mothers (or possibly nannies). Don't know if the reverse occurs, but I would tend to doubt it.

I'm sure that people look occasionally in the gym itself, but anything obvious seems to be held in check by the presence of a lot of people who look like stern great-aunts and chiefs from the fire house. It's a chaperone system of sorts, but really it's just a family environment. To the extent of raising an issue of swimsuits in the single-sex sauna, as I complained about yesterday. That's just plain silly, but the workout rooms are nice.
3.7.2008 1:06pm
ronnie dobbs (mail):

Ha! If you only knew how many gay men work out at the gym! If you don't want to be oogled, then work out at home alone.

tvk: "Exclusion of gays from the military: You are excluded from your preferred career path; but you can choose any other of numerous potential careers. "

Yeah, really -- discrimination is perfectly okay against gays because, well, they are just so icky.


It sounds like you're telling us (a) that yes, gay men at the gym are indeed very likely to ogle other men; and (b) only anti-gay bigots would be opposed to being required to share latrines with those icky gays. That's what's known as trying to have your cake and eat it too--at least to the extent you agree that it's reasonable to object to being ogled.

Seems to me that the sensible policy is to (a) allow gays in the military, provided that they disclose their orientation publicly so as to preclude blackmail; and (b) establish a separate latrine for gays and lesbians (or give all service members more privacy generally).
3.7.2008 1:37pm
Randy R. (mail):
As a gay man, I certainly check out the guys. I also see plenty of hetero men checking out the guys as well. Yes, straight men are sometimes just interested in what other guys look like. So if you don't want to be 'ogled' at all, then you have to work out at home.

Your sensible policy is indeed sensible, but separate latrines are unnecessarily, as the usual rules for professional behavior apply to all servicemen and women.

Frankly, if you are so hot that everyone ogles you, you should get used to it, and be proud of it. But the reality is that most people are NOT attractive naked and have nothing to worry about, regardless of sex or sexual orientation.
3.7.2008 2:10pm
Houston Lawyer:
I believe that the current don't ask don't tell policy of the military means that gays can serve as long as they remain in the closet. Members of the military are prohibited from openly speaking their minds on a number of issues, such as whether women should be allowed in the military or proclaiming racial superiority of some sort. So people who are not openly gay are not prohibited from serving. I've read on this blog of a number of people who were gay and served in the military.

I have no clue as to the number of gays who are closeted verses the number who are not. I suspect, however, that those who are closeted would be much more likely to want to serve than those who are open regarding their sexuality.
3.7.2008 2:32pm
Stacy (mail):
whit: "so, i know this has nothing to do with muslims because i didn't even know what a muslim was. "

No, your particular objection had nothing to do with muslims, because there was no religious angle in the scenario you described from your grade school years. I said that Harvard's women-only gym hours are a hot topic because the request comes from muslims, and submitted as evidence my personal experience of women-only gym hours being generally accepted at my alma mater, which by the way is a large state school.

My point is just that it's worth thinking through the implications of the fact that most of us wouldn't mind women-only gym hours on the basis of "preventing harassment" but are made uneasy by the identical policy when it's on the basis of "religious strictures". I'm not playing the Islamophobe card because I'm quite sure that [likely a different set of] people would be made uneasy if the religious strictures in question were Christian, Hindu etc.

As an aside, I'd say the commercial success of women-only gyms is dispositive on the question of whether many women would prefer to work out in a single-sex environment.
3.7.2008 2:40pm
Mike G in Corvallis (mail):
EV wrote:

3) Riptide: I'm not sure slogans like this will take you far. For instance, I take it that you'd oppose "separate but equal" restrooms for blacks and whites -- but does it follow that we should oppose such restrooms for men and women? Race and sex aren't necessarily the same for legal purposes, ethical purposes, or other purposes.

I can't speak for Riptide, but I certainly have no problem with opposing "separate but equal" restrooms for men and women in public establishments. Restrooms can and should be designed to ensure privacy for all users, regardless of the users' sex.

Not to be facetious, but I have three "gender-neutral" bathrooms in my own home -- in fact, two of them are designed with separate enclosed alcoves for toilets, bathtubs, and sinks, so one bathroom can be used by several people, of any and all sexes, at the same time with full privacy. The third is a single-seater, and only one person of either sex is permitted to access its facilities at a time. ;-)

Several years ago, the university at which I worked successfully converted a number of its segregated restrooms to equal-access facilities. They were single-toilet restrooms with locking doors; all they had to do was change the signs on the doors! Many small restaurants, gas stations, and businesses currently have two single-seat restrooms, each restricted to use by members of one sex or the other -- why should these be segregated?

Users of sports stadiums often see women commandeering men's bathrooms, and I note that: (a) use of one sex's facilities by the other is hardly novel, (b) many women and men are not very concerned with privacy when nature's call is sufficiently loud, (c) such dual-use is never successfully prosecuted, (d) conversion of "gender apartheid" restrooms to use by both sexes would constitute a public good by maximizing the availability of scarce facilities. The men's locker rooms of those same sports stadiums are also open to women, at least if the women are reporters; evidently the Public's Right To Know trumps the desire for privacy by male athletes.

I note that desegregated facilities would also be in line with ronnie dobbs' recommendation above: "establish a separate latrine for gays and lesbians (or give all service members more privacy generally)."

Would it impose an undue burden to require public establishments to accommodate both sexes in all restroom facilities? Yes, retrofitting existing facilities to ensure sufficient privacy will cost money. But imposing handicapped-accessibility standards on establishments that serve the public also cost money -- sometimes a lot of money -- so there's ample precedent.
3.7.2008 3:02pm
ronnie dobbs (mail):

As a gay man, I certainly check out the guys. I also see plenty of hetero men checking out the guys as well. Yes, straight men are sometimes just interested in what other guys look like. So if you don't want to be 'ogled' at all, then you have to work out at home.

Your sensible policy is indeed sensible, but separate latrines are unnecessarily, as the usual rules for professional behavior apply to all servicemen and women.

Frankly, if you are so hot that everyone ogles you, you should get used to it, and be proud of it. But the reality is that most people are NOT attractive naked and have nothing to worry about, regardless of sex or sexual orientation.


That's a refreshingly honest and reasonable response. I recall when the "gays in the military" controversy erupted, many gay rights advocates tried to sell the idea that gays were far too saintly to sneak a peak when in the locker room (or other similarly disrobed environments). As a straight guy, if I were allowed into the women's locker room, you could rest assured that I would enjoy (at least some of) the views.

If separate latrines are unnecessary, then why don't men and women shower together in the military? Surely their commitment to professional standards would preclude any ogling or inappropriate conduct, no?
3.7.2008 4:36pm
A.C.:
Is working out more like using a restroom, changing room, or public shower, or is it more like walking down the street in your ordinary clothes (whatever those may happen to be)?

I think it tends towards the latter for most activities. You can show as much or as little flesh as you want in the weight room or aerobics studio. Swimming comes the closest to a shower situation, but even then there are a lot of options more modest than the standard western swimsuit. Some were even designed as Islamic dress, but others are somewhere in between a bikini and extreme coverage.
3.7.2008 4:39pm
Elliot123 (mail):
This has all kinds of room for growth. In Saudi Arabia there were several company gyms used by both Western expats and Saudis. This particular one was designated a male-only gym.

In the gym, everybody got along quite well. It was like most any gym in the US. However, then the locker room wars started.

The expats walked into the open locker room, stripped down, showered, got dressed, etc. At many times they were completely naked.

The Saudis, however, would wrap a towel around their waists while still wearing their touusers, then pull off their trousers. Then they would pull on their gym shorts under the towel. After their workout, they reversed the procedure: towel around waist, gym shorts off, take a shower wearing the towel, use another towel to dry off, and never let their genitals be seen.

So, the Saudis complained that they were offended by the naked expats. Then management placed monitors in the locker rooms to document the naked expats. When the expats figured out what was happening, they stayed naked as long as they could, sitting or walking around while the Saudis averted their eyes.

The war went on for months. It was resolved with another locker room, and the expats and Saudis self-segregated.
3.7.2008 5:48pm
bud (mail):
A.C.: "Very small boys occasionally turn up in the women's locker room with their mothers (or possibly nannies). Don't know if the reverse occurs, but I would tend to doubt it."

Don't doubt it. There are a number of guys who bring their very small daughters into the men's locker at my club. The 2 income family has produced many a surprise to assumptions.
3.7.2008 5:56pm
David Chesler (mail) (www):
Sports stadiums:(c) such dual-use is never successfully prosecuted

A few years ago a season-ticket holder lost his season ticket when he (or the person to whom he'd given that game's tickets) found the line too long in the men's bathroom, and used the women's bathroom instead. (I can't remember if he was charged with disorderly conduct.)
3.7.2008 6:23pm
Taxpayer (mail):
All right, the law should not compel this accommodation, but there also should be no legal repercussions if the institution decides to refuse the accommodation.
3.7.2008 6:47pm
Gorgonzola Lezzie (mail):
Should it be illegal for various organizations — whether health clubs generally or exercise facilities at universities — to provide single-sex exercise facilities? I'm inclined to say the answer is yes, because I have a constitutional right to ogle all the tits and ass I like.
3.8.2008 2:33am
Pol Mordreth (mail):
EV, As far as your analysis that Harvard is not covered by the statute, read these proposed rules by the MCAD here. In 804 CMR 5.04 (10) it lists the criteria for determining whether a place is a publc accomodation or a private club. The way I read it, a, b, and d swing in favor of Harvard being a private club, c could go either way depending on how you looked at it, and e, f, and g are in favor of it being a place of public accomodation. Granted, these are proposed regs, and I can't find the current definitions at the moment.

Respectfully,
Pol
3.8.2008 3:26pm
alsojsr:
I'm just curious what would happen if the Muslims said they were uncomfortable swimming with Jews and wanted "no-Jew" swimming periods [which let's face it is not all *THAT* unlikely a possibility]. Would the people who are saying sex discrimination is okay still be alright with Jew discrimination?
3.9.2008 11:42am