Examining the Right to Provide Gender-exclusive Services

Women Only

By Daniel C. Carr, Esq.

In recent weeks, a Texas movie theatre sparked controversy by holding several women-only screenings of the new Wonder Woman movie, including a promise that only female employees would be scheduled to work during these screenings. The theatre was the target of a great deal of criticism, and many alleged that the theatre was discriminating against men.

Much of the rage came from the usual suspects — men’s rights activists, misogynists, and other groups prone to Internet trolling.  Also among the aggrieved was a less-expected party: University of Albany Law Professor Stephen Clark. According to his statement, Clark wasn’t offended that a screening was held specifically for women, but, rather, that the theatre advertised “No Guys Allowed.”

Particularly maddening was the fact that the theatre actively barred male patrons and promised that only female staff would be allowed to work during the screening. “It’s the principle of the thing,” Clark said. “I’m a gay man, and I’ve studied and taught gay rights for years. Our gay bars have long said that you do not exclude people because they’re gay or straight or transgender — you just can’t do that for any reason … It’s discrimination.”

For many, the special screening made sense. Wonder Woman is not only the first female-led superhero film since 2005’s critically-panned Elektra, but also the first female-led superhero film directed by a female. This, combined with its strong critical and financial performance in the wake of its underwhelming male-led predecessors, has given advocates of equitable representation of women in the film industry cause for celebration. The women-only screenings sold out quickly.

This conflict illustrates an important point: the law still permits single-gender organizations and services in certain contexts, but when do gender-exclusive organizations or services cross the line into actual, illegal discrimination?

The law generally weighs an individual’s First Amendment right to expressive association against the state’s compelling interest in eliminating discrimination. In genuinely private settings, the individual’s First Amendment rights will almost always prevail. Alamo Drafthouse’s women-only screenings would not have been a big deal if the theater had been rented out by a private entity. In fact, in response to one Facebook question concerning whether there would be men-only screenings, Alamo Drafthouse responded with a link to its ‘private events’ booking page.

However, in public-accommodation cases like the one above, Massachusetts and federal law generally find that the state’s interest in eliminating discrimination outweighs an individual’s First Amendment right to expressive association. Massachusetts state law specifically prohibits making any distinction, discrimination, or restriction in admission to or treatment in a place of public accommodation, based on race, color, religious creed, national origin, sex, gender identity, sexual orientation, physical or mental disability, or ancestry. No distinction is made between historically dominant groups and historically disadvantaged ones. Discrimination is discrimination.

But what is a place of public accommodation? According to the law, a place of public accommodation is an entity which is open to and accepts or solicits the patronage of the general public. Common examples include theaters, hotels, restaurants, stores, banks, hospitals, transportation services, parks, childcare centers, and the like. This is not a complete list. There are no complete lists because there are simply too many unique contexts to draw a clear line.

In contrast to places of public accommodation, genuinely private entities’ right to expressive association is considered to outweigh the public interest in eliminating discrimination, and, therefore, private entities are not bound by the same anti-discrimination laws. An organization’s status as a private entity, and therefore the legality of maintaining a gender-exclusive policy, depends primarily on whether the organization exercises “genuine selectivity” with respect to applicants or members.

For example, in 1997 the Mass. Commission Against Discrimination (MCAD) ruled that a female divorce attorney was liable for gender discrimination for refusing to represent male clients in divorce proceedings. In determining that her law practice qualified as a place of public accommodation, the MCAD noted that she advertised her services to the public, did not have any particular criteria for selecting her clients, and admitted that she refused to represent the complainant solely because of his gender.  In short, there was a lack of “genuine selectivity.”

By way of comparison, in 2014, the MCAD applied the same standard to reach a different result in a case brought by a male victim of domestic violence against a nonprofit organization for female victims of domestic violence. The MCAD ruled that the charity had not violated anti-discrimination law by refusing to provide male victims of domestic violence the low-cost facial reconstructive surgery offered to female victims of domestic violence. The MCAD ruled that the charity had adhered to a policy of “genuine selectivity” because it was not open to the public and it applied an array of eligibility criteria, including economic status, type of injury, anticipated period of recovery, and residency restrictions.

Additionally, under Massachusetts law, certain entities may be places of public accommodations at certain times and not others. For example, in 2002, the Supreme Judicial Court of Massachusetts ruled that a publicly owned building, when booked for an event sponsored by a religious group for the purpose of religious meetings, does not qualify as place of public accommodation during that time; therefore, the group was allowed to ban women from attending the meeting.

Conversely, Massachusetts has recently announced that the reciprocal is true: religious institutions, such as churches, temples, or mosques, are considered places of public accommodations when being used for secular purposes, such as a spaghetti dinner open to the public.

If your business or organization intends to maintain a gender-exclusive policy, it is important that you analyze these factors to ensure the policy’s legality. The law can be tricky, and lawsuits are costly. u

Daniel C. Carr, Esq. specializes exclusively in management-side labor and employment law at Royal P.C., a woman-owned, NAMWOLF-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]