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.