Gender Studies Experts and Advocates Support New York City Commission on Human Rights Enforcement of Sex Discrimination Law

The New York City Human Rights Commission (the Commission) has opened up an investigation of The Wing, a membership-only club that provides spaces to work and network in several locations in New York City. Only women can be members of The Wing. The Commission is responsible for enforcing New York City’s Human Rights law, and running a business in New York City that discriminates on the basis of sex clearly violates New York City’s Human Rights Law. (The Wing does not fall within the narrow exemption in the law for small private clubs). We support the Commission’s action in this case, standing behind sex discrimination principles as applied to businesses – even in a challenging case such as this one.

One might think that this is a benign, if not beneficial, context of sex-based segregation and that it would be ludicrous or unwise to enforce laws that prohibit sex discrimination by private businesses and clubs. Afterall, the Wing might be seen as a part of the #MeToo movement, an effort to create safe spaces for women to gather professionally, away from harassment by men.

The Commission is now being pressured to drop its investigation of The Wing. In our view, it is difficult to see the progressive wisdom in using political pressure to force the Commission to look the other way when a business engages in practices that clearly violate the law. Sure, some might like all women spaces, but this can’t be its business model, just as we would condemn all-male businesses, all-white businesses, all-Christian businesses, etc. Opening the door here to the non-application of the law will surely be used by other groups/interests who disagree with the application of a generally applicable rule in another context. Indeed, the lawyers representing The Wing are expressly relying on the Supreme Court case that allowed the Boy Scouts to deny membership to LGBTQ people.

The expectation that The Wing should be given a pass from complying with New York City’s Human Rights Law should be understood in relation to the rise of religion-based demands for exemption from the law in other contexts. Across a range of settings we see a growing demand that otherwise generally applicable laws not be applied because an individual or group has a “legitimate” reason for an exemption in a special case. Often that reason is religion, and the normative force of that argument is that there are competing moral or ethical values that make the application of the law inappropriate. Were these arguments to prevail each person would be given the authority to pick and choose which laws they’ll comply with and which ones they won’t – all according to their own sense of what is right. The advocates representing The Wing are making a similar argument here: we have a good reason to deny membership to people who aren’t women, and thus the Commission should not enforce the law against us. This position undermines the justification for requiring private clubs to comply with non-discrimination principles in the first place, and risks weakening the authority of the Commission to enforce the law when it is subject to political pressure by special interest groups not to do so.

One additional concern of note has to do with gender identity: if this is a private club that only allows women to be members, who counts as a woman? What about gender non-conforming/gender queer people? A woman-only business not only discriminates against men, but also all other people who don’t identify as women. The New York City Human Rights Law also prohibits discrimination on the basis of gender identity.

Historically, private clubs, private schools, and other private institutions (even private prisons) were set up in order to avoid compliance with public equality norms. This was particularly the case in reaction to gains in racial equality in the 1950s and 1960s when segregationists retreated to private institutions in an attempt to avoid laws that required the racial integration of workplaces, schools, clubs, and businesses. These entities argued that by virtue of their “privateness” the law could not, and should not reach them – and they lost those arguments each time they were raised. It is alarming to hear the same kind of argument being made today by The Wing and its defenders in the name of protecting women. Courts have been clear that civil rights laws were intended to and do reach private businesses, schools, and clubs.

We appreciate the need for groups that experience discrimination to find ways to combat the effects of that discrimination and to provide mutual support to one another. But setting up a business that clearly violates fundamental equality principles is more likely to reinforce societal inequality than provide protection against it.

(Affiliations are for identification purposes only)

Katherine Franke
Sulzbacher Professor of Law, Gender, and Sexuality Studies
Columbia University

Patricia Williams
James L. Dohr Professor of Law
Columbia Law School

Patricia Dailey
Associate Professor of English and Comparative Literature
Director, Institute for Research on Women, Gender & Sexuality
Columbia University

Christia Mercer
Gustave M. Berne Professor of Philosophy
Columbia University

Janet Jakobsen
Claire Tow Professor
Barnard College

Paris R. Baldacci
Clinical Professor Emeritus of Law
Cardozo School of Law

Clare Huntington
Associate Dean for Research
Joseph M. McLaughlin Professor of Law
Fordham Law School

Lisa Duggan, Professor
Department of Social & Cultural Analysis
New York University

Christia Mercer
Gustave M. Berne Professor
Columbia University

Paisley Currah
Political Science
The Graduate Center, CUNY

Julie Goldscheid
Professor of Law
CUNY School of Law

Darren Rosenblum
Professor of Law
Pace Law School

Vicki Schultz
Ford Foundation Professor of Law and Social Science
Yale Law School