I appreciate Micah's point, which is why I think it's important
that the underlying Equal Protection Clause analysis seems to already allow a
good deal of sex discrimination for privacy reasons, but not, say, race or
religious discrimination. We all agree, I take it, that it's pretty clearly
constitutional to have single-sex shower rooms, but not single-race or
single-religion ones. The Equal Protection Clause questions, in my view, are
(1) whether government should be able to use same-sex programs to protect
privacy (in the modesty sense) even in situations where the privacy concerns
are not shared by the national majority, though felt deeply by a minority, and
(2) whether the religious motivation of the minority should be an extra
justification to allow such same-sex programs (which already aren't that far
from same-sex programs that are generally allowed). I'm not sure what the
answer is to these questions, but I think these are the right questions.
Here, by the way, is the passage from Livingwell,
https://scholar.google.com/scholar_case?case=11920620329987807595, in which a
Pennsylvania appellate court dealt with the similar (though I agree not
identical) question of whether single-sex health clubs satisfy the bona fide
public accommodation qualification exception from Pennsylvania sex
discrimination law:
LivingWell contends that their customers have a legitimate privacy interest in
exercising in a single sex club because exercising focuses upon aspects of
their figures which they wish to improve. While doing the exercises to reshape
their figures, they expose parts of the body about which they are most
sensitive, assume awkward and compromising positions, and move themselves in a
way which would embarrass them if men were present.
The Commission contends, however, that the nature of the privacy interest
advanced here is not entitled to protection because no matter how awkward or
compromising the position a person finds her or himself in while exercising,
there is no protected privacy issue unless an "intimate area" of the body is
actually exposed. The Commission argues that customer "modesty" preferences not
commonly held by society are irrelevant to justify a gender-based
discrimination.
Simply because all the cases until now have discussed the exposure of or
touching of "intimate areas" of the body does not mean that each gender lacks a
privacy interest in all other situations. The problem in determining what is
"protected" is that societal conduct in this area is not consistent or
rational. What we believe is private, humiliates us or makes us uncomfortable
comes from societal norms and standards of conduct. What is "acceptable" in
that context is based on time, place and circumstances. For example,
individuals who would wear generally acceptable revealing attire at the beach
or pool would likely be totally humiliated to be seen walking down a public
street in their much less revealing nightwear. What this indicates is that in
relation to one's body, there are societal norms, i.e., a spectrum of modesty,
which one either follows or respects, and if one is required to breach a
modesty value, one becomes humiliated or mortified....
Just because "intimate areas" of these women's bodies are not exposed does not
mean that they do not have a privacy interest worthy of recognition. The
uncontroverted evidence is that if men were admitted, these women would suffer
from extreme embarrassment, anxiety or stress and would not continue to
exercise at LivingWell. The standard for recognizing a privacy interest as it
relates to one's body is not limited to protecting one where there is an
exposure of an "intimate area," but such a right may also be recognized where
one has a reasonable basis to be protected against embarrassment or suffer a
loss of dignity because of the activity taking place.
The Commission believes that the privacy interest is not justifiable and these
women have no reasonable basis to feel embarrassed because society as a whole
would not find it objectionable to exercise with the opposite sex. Privacy
interests are not determined by the lowest common denominator of modesty that
society considers appropriate. What is determinative is whether a reasonable
person would find that person's claimed privacy interest legitimate and
sincere, even though not commonly held. Nothing in the record supports nor does
the Commission seriously challenge that these women do not sincerely hold these
beliefs or that a reasonable person would not find these beliefs legitimate.
Even if a privacy right exists, whether that privacy interest is worthy of
protection is determined by balancing that interest against any harm caused to
the excluded men. The only harm the Commission advances is that the men will
not be allowed to exercise at certain LivingWell locations. However, the
Commission admits that there are other facilities just as convenient where men
can exercise in a coed environment. Unlike gender discrimination that would
result in the non-hiring of males, or where an exercise establishment has other
facilities where business or "networking" is conducted, no harm exists to any
male by being excluded from LivingWell's facilities....
Do people think that this is a plausible interpretation of the bona fide
qualification exception from state bans on discrimination in places of public
accommodation (including private places)? If so, do people think that this
would likewise be a defense to an Equal Protection Clause claim, when the place
is owned by the government?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah
Jacob (mjs4d)
Sent: Friday, June 03, 2016 8:27 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: "Religious diversity" as a compelling interest for discrimination
in universities?
Is the argument for this accommodation based on religious concerns about
privacy/modesty limited to gender discrimination? Suppose a religious group
believes that, for reasons of modesty, its members should only swim with
coreligionists of the same sex. Could the city adopt a policy excluding (for a
couple hours) everyone who isn't a member of that religion on the ground that
it has a significant interest in promoting water safety? Or on the ground that
it has a significant interest in providing access to public benefits for all
taxpayers?
Or does exclusion based on religion, rather than gender, fail because it
triggers strict (and not intermediate) scrutiny? Promoting water
safety/taxpayer access is significant but not compelling?
On Jun 2, 2016, at 11:28 PM, Volokh, Eugene wrote:
Again, I wonder whether sex-separate swimming really "screams
inconsistent with every case on the books." Consider, for instance, United
States v. Virginia, where Justice Ginsburg's majority opinion stated that
"Admitting women to VMI would undoubtedly require alterations necessary to
afford members of each sex privacy from the other sex in living arrangements,"
n.19 - not just in bathrooms, I take it, but also in barracks / roommate
arrangements and the like. Indeed, the opinion left open the possibility that
single-sex education may generally be constitutional (except when it denies
women access to "unique" colleges such as VMI, so that the separateness is not
equal), n.7. Would we draw "an interesting parallel to racism" here, or would
we conclude that sex is different enough from race, especially when it comes to
"privacy"? And, if so, why would accommodation of slightly different notions
of sex-based privacy - such as those applicable to swimming rather than to
"living arrangements" - necessarily be excluded?
Eugene
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