Abolish Anti-Discrimination Laws

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 men.

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?

Body Central 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.’

California 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 state.

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.

Unfortunately, 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.

January 6, 2006