Abolish Anti-Discrimination Laws

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Last week,
the California
Department of Fair Employment and Housing
filed a lawsuit against
the Santa Rosa health club Body Central.

According to
the agency, which enforces California’s civil rights and anti-discrimination
laws, the club’s women-only policy violates the civil rights of

Is the suit
just payback for feminist intrusions into male-only groups? Or does
the suit merely extend an unjust law and embed it further into society?

is poised to become a test case.

At issue is
whether an owner has the right to control the customer policies
of his or her private business. If so, then the state cannot properly
dictate whom that owner must serve or allow onto the premises. A
decision to discriminate among customers would be an expression
of the owner’s freedom of association and of the same property rights
that protect his or her home from unwelcome ‘guests.’

law denies the existence of such private rights for businesses.
It asserts, instead, that the public has a civil right to access
an owner’s property and services even over his or her objection.

The Unruh
Civil Rights Act, Civil Code section 51(b)
, stipulates that
business establishments must provide “full and equal accommodations,
advantages, facilities, privileges, or services” and not discriminate
on the basis of “sex, race, color, religion, ancestry, national
origin, disability, or medical condition.” The businesses in question
include, but are not limited to, hotels, non-profit organizations,
restaurants, theaters, retail establishments, and beauty shops.

Arguably, California
claims control over the customer policies of every business in the

In 1995, the
California Supreme Court decided
a case
in which a woman demanded entry into an exclusive men-only
golf club. The court ruled that private clubs operating as businesses
were required to follow state laws against discrimination.

That’s the
law in California. But is it just, or does the law itself constitute
a violation of individual rights?

The facts confronting
the Body Central conflict are not in question.

In 2003, Phillip
Kottle was refused membership at the women-only gym in Santa Rosa
on the basis of his sex. A few months earlier, Kottle had attempted
to gain full membership at the Elan Fitness Center in nearby Petaluma,
which offered only restricted access to men. (Acting on his complaint,
the DFEH also
filed a suit against Elan
, which was settled in January 2005
on the condition that men have full access to classes and facilities,
with the exception of lockers and showers.)

The DFEH concluded
that Body Central was in violation of the Unruh Act and, in 2004,
the owner signed a settlement agreement by which the club was opened
to men. Separate shower facilities were to be provided; a monetary
settlement was offered to Kottle; women-only advertisements were
withdrawn; the club’s staff received anti-discrimination training.
In return, the DFEH ceased its enforcement action against Body Central.

The DFEH’s
renewed action against the club alleges violations of the 2004 agreement
and points to such transgressions as language on the club’s website.

For example,
Body Central
states, “We specialize in fitness for women, with a women only policy
you get the privacy of the entire gym.”

The owner may
have gambled on the possibility that California would ultimately
ignore a cause as unpopular as a man forcing his way into a woman’s
gym. After all, the cost of compliance is high. Body Central’s equipment
and facilities are geared exclusively for women’s specific needs,
and other gyms have gone bankrupt under the financial strain of
expanding to accommodate both sexes. If so, the gamble lost. A “status
conference” on the DFEH lawsuit is set to be heard in April before
the Superior Court.

The facts may
be clear but the appropriateness of involving law in the customer
policies of a private business is in dispute.

An ideological
conflict underlies the attempt by either sex to force open the doors
of ‘exclusive’ businesses: individual rights versus egalitarianism.
Under individual rights, every human being has control over the
peaceful use of his or her own body and property. Under egalitarianism,
access to and use of property is equally distributed across society,
with or without the consent of owners.

I come down
on the side of individual rights.

In terms of
Body Central, I don’t believe any man or woman has a legal ‘right’
to exercise on someone else’s private property. I do not believe
anyone has a moral obligation to provide another person with exercise.
Freedom of association means that individuals, including property
owners, have a right to say ‘yes’ or ‘no’ at their own front door.

an emotional element also underlies the conflict.

Some men applaud
the turn-around as an opportunity to give feminists a taste of their
own medicine. In doing so, they adopt the very principles they allegedly
decry: egalitarianism, the legal imposition of gender policy, the
use of collective ‘gender-think.’ In short, they become feminists.

Body Central
may become not only a test case but also a trial of conscience.

Women who believe
in egalitarianism will either apply that principle to men or be
confronted by their own hypocrisy. Men who believe feminism’s door-busting
has been wrong will have to decide whether they value revenge more
highly than justice.

As for me,
I just hope an unjust law will be extinguished rather than extended.

6, 2006

McElroy [send her mail]
is the editor of ifeminists.com
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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