Posted by Eugene Volokh:
Affirmative Action (in the Sense of Exemption from Antidiscrimination Law) for
Gay Venues?
http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180560468
From [1]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 [2]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
[3]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.
References
1. http://www.austlii.edu.au/au/cases/vic/VCAT/2007/916.html
2. http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s82.html
3. http://dictionary.reference.com/browse/gaydar
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