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Women-Only Exercise:
[Reposted to fix comments, which weren't working originally.]
Prof. Glenn Reynolds (InstaPundit) asked whether this would violate Massachusetts antidiscrimination law:
Harvard University has moved to make Muslim women more comfortable in the gym by instituting women-only access times six hours a week to accommodate religious customs that make it difficult for some students to work out in the presence of men.
Men have not been allowed to enter the Quadrangle Recreational Athletic Center during certain times since Jan. 28, after members of the Harvard Islamic Society and the Harvard Women's Center petitioned the university for a more comfortable environment for women....
Prof. John Banzhaf has put out a press release saying that it probably does:
... In 1998 a female weight lifter in Boston was awarded $5000 when she was denied admission to a male-only section of a gym which had a separate gym area for women. The Massachusetts Commission Against Discrimination made the ruling despite arguments that separate weight-lifting areas were necessary to prevent "sexual harassment," and a finding that it did in fact tend to reduce sexual harassment. [Hassan and DiCenso v. City of Boston, et al., 20 MDLR 83]
Just a year earlier Superior Court Judge Burnes ruled that a "women only" health club violates Massachusetts' public accommodation statute by refusing to admit men, and could not justify its policy on privacy grounds. [Foster v. Back Bay Spas, d/b/a/ Healthworks Fitness Center, Suffolk Superior Court No. 96-7060 (1997).]
Although the legislature responded by exempting some health clubs which are established solely for use by one gender, that exemption does not appear to apply here because the gym is used by both genders together during most times of the day, and because Harvard receives public funds. In the statutory words:
"however, that with regard to the prohibition on sex discrimination, this section shall not apply to a place of exercise for the exclusive use of persons of the same sex which is a bona fide fitness facility established for the sole purpose of promoting and maintaining physical and mental health through physical exercise and instruction, if such facility does not receive funds from a government source." [ALM GL ch. 272, § 92A] ...
A couple of quick thoughts:
I may be mistaken, but my sense is that the relevant statute wouldn't apply to Harvard if the exercise facilities are inded open only to Harvard students, faculty, staff, alumni, and some family members. The statute states that, "A place of public accommodation, resort or amusement within the meaning hereof shall be defined as and shall be deemed to include any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public" (emphasis added), and Harvard-only facilities aren't aimed at "the general public." Cf. Haskins v. President and Fellows of Harvard College, 13 Mass.L.Rptr. 691, 2001 WL 1470314 (Mass. Super. 2001) ("Although Harvard accepts applications for admittance from the general public, it admits only a small fraction of applicants. The unsuccessful majority (like the rest of the public) is then excluded. Thus Harvard is not a place of public accommodation within the meaning of the statute.").
If there's some statutory text or caselaw I may have missed on this, please let me know.
UPDATE: Thanks to Wallace Forman for the pointer to what seem to be the eligibility criteria for Harvard recreational facilities; the original version was more tentative on the criteria, and also omitted the possibility that family members might qualify (a possibility that does not affect the analysis, I think).
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.
More on Single-Sex Exercise:
To follow up on Eugene's Thursday post, here is what I wrote about the issue in Chapter 11 of You Can't Say That!:
Approximately two million American women belong to women-only health clubs. Some women, such as those with religious objections to wearing revealing clothes in front of men, and abuse survivors who find it traumatic to display their bodies in front of unfamiliar men, use these clubs by necessity. Other women join these clubs to avoid unwanted male attention while they exercise. Still others, including overweight women and women who have had mastectomies, feel much less self-conscious exercising in an all-female environment. The owner of one women’s health club boasts, "I like to think we're for real women. We don't have everyone looking like a Barbie doll. They're average size and shape. And we don’t let men in. We say, 'No men, no mirrors, no kids.'" The owner of a club that holds women-only aerobics classes explains, "It's a privacy issue. The women are sweating, they don’t have makeup on, and they feel that the guys are staring at their butts."
Some women find men to be a distraction when they go to coed gyms. Cynthia Parziale, director of research and development at the Naturally Women chain of fitness centers opines, "If you're really serious about your workout, it's distracting to have people of the opposite sex around. Women will spend time getting dressed or fixing their hair or putting on their lipstick before they come to the gym. The coolest thing about a women's gym is you can be ugly." Joan Pirone, who patronizes a women-only exercise club in Anchorage, Alaska, told CNN that "[a]t coed clubs you feel like you’re on TV, like the men are constantly looking at you. Some women enjoy the attention from men, but some of us are intimidated by it. I'm glad I have the choice of going to a women-only gym."
Other users of women’s health clubs find that the women-only facilities are cleaner and smell better than coed gyms. Women's clubs also often emphasize the workout equipment that is used more frequently by women, and many even have special equipment built for women. The two women-only clubs in Anchorage, for example, have smaller-than-average Nautilus machines designed for women's bodies, with the weight stacks increasing by three-pound increments instead of the usual ten. Women-only clubs also emphasize educational programs focusing on women’s health concerns, such as preventing osteoporosis and losing weight gained during pregnancy.
Despite their popularity and the privacy interests served by allowing women to work out free from male oglers, women-only clubs have sometimes run afoul of state laws banning sex discrimination in public accommodations. In 1988, noted feminist attorney Gloria Allred filed a sex discrimination lawsuit on behalf of a Los Angeles man who was denied admission to a women’s health club. Allred dismissed the concerns of women who join all-women gyms to avoid male ogling. She contended that the idea that all men ogle is a stereotype and that men who misbehave can be excluded from sex-integrated clubs on a case-by-case basis. Yet common experience suggests that heterosexual men are inclined to "check out" women, particularly women wearing small shorts or tight leotards. Further, Allred did not explain how a club would enforce or prevent an anti-ogling policy on an individual basis. It would be very different to actually prove the subtle act of a man evaluating a woman's body (Mr. Jones, please stop undressing Ms. Smith with your eyes), and sensitive women could very well feel ogled whether or not it was actually happening. Despite these
arguments, the Los Angeles club ultimately agreed to settle Allred's lawsuit and began admitting men. Successful lawsuits against women-only gyms in Minnesota, Orange County, California, and Wisconsin followed.
Happily, the tide seems to have turned against applying sex discrimination laws to the membership policies of gyms. In 1997, a Massachusetts trial court ruled that a women-only health club, Healthworks Fitness Center, could not exclude men. The decision was met with dismay by the 40,000 female members of that and other such clubs throughout Massachusetts. Despite the National Organization of Women’s objections, legislators responded to a flood of protests from angry female exercise enthusiasts by exempting single-sex health clubs from Massachusetts’s public accommodations law. Since then, Alaska, Colorado, Hawaii, Illinois, New Jersey, and Tennessee have also passed laws specifically permitting single-sex health clubs, catering to either sex.
The federal Equal Employment Opportunity Commission (EEOC), meanwhile, has sued women's health clubs for refusing to hire male employees. The most significant case involved the Women's Workout World chain of fitness clubs in the Chicago, Illinois metropolitan area. After a showing that the chain hired only women, a federal judge granted summary judgment to the EEOC's claim of employment discrimination. In response, Women's Workout World filed a motion for reconsideration supported by a petition signed by over 10,000 club members. In support of its motion, the chain noted that it specialized in individual attention for its members and that its members did not want men touching them during workouts or seeing them disrobed in the locker room.
The judge concluded that Women’s Workout World had articulated a legitimate privacy interest with regard to nudity and withdrew the summary judgment, but he allowed the case to continue. After seven years of crippling litigation expenses, Women’s Workout World settled. The company agreed to hire men for certain restructured positions that would (hopefully) maintain members' privacy, and to pay $30,000 to men who had been turned down for jobs. Other all-women clubs have also fought and sometimes lost sex discrimination lawsuits filed by men who were refused employment.
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