I’m not at all sure that this form of sex classification is
constitutional. But, as is often the case with analogies between single-sex
and single-race, I don’t think the simple sex/race analogy is helpful here.
I take it that few of us would think that single-sex dressing
rooms are “about as constitutional as single race dressing rooms.” The
government can legitimately accommodate some sorts of privacy/modesty concerns,
at least when it comes to people seeing each other in a state of undress or
near-undress. Then-Professor Ginsburg so wrote in the 1970s in response to
criticism of the ERA; Justice Ginsburg so noted in United States v. Virginia;
many courts have even said that denial of such privacy (e.g., in prisons, where
prisoners are searched by guards of the opposite sex) is a constitutional
violation. Perhaps Justice Ginsburg is tantamount to a racial segregationist,
but I doubt it.
Of course, the exposure of one’s body at a swimming pool isn’t
the same as the exposure in a shower or even in a changing room; we know that
precisely because our culture generally has mixed-sex swimming pools but
single-sex changing rooms. But some cultures, especially some
religiously-linked cultures, draw the privacy/modesty line in a somewhat
different place – not a vastly different place, but a significantly different
place. The question is to what extent government actors (and, under public
accommodation laws, private institutions) may accommodate that differently
placed line. Categorically equating sex classifications with race
classifications, I think, doesn’t really help us answer that question.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 2, 2016 4:03 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?
This seems about as constitutional as single race swimming pools.
I appreciate the desire of Ultra Orthodox Jews to live the life they want to
life. That is what the Constitution protects. But it also protects the rights
of everyone else to live their lives. That has to mean equal access to all
pools.
There is also an interesting glitch. Some of my Orthodox male relatives and
friends are uncomfortable around women in "immodest" dress are swimming pools.
So they might need single sex pools as well.
Then there are all sorts of transgender issues, too complicated to imagine.
******************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania
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________________________________
From: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Thursday, June 2, 2016 6:18 PM
Subject: thoughts on constitutionality of single-sex hours for public pool?
permissible accommodation?
http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html
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