Recent news about Planet Fitness allowing self-identified women to shower in women’s locker rooms, and a subsequent discrimination lawsuit, has brought scorn from some on the company’s policy of openness.
“Planet Fitness is committed to creating a non-intimidating, welcoming environment for our members,” its public relations director said in a statement. “Our gender identity non-discrimination policy states that members and guests may use all gym facilities based on their sincere self-reported gender identity.”
When a client complained about that policy and what she viewed as men showering in women’s locker room, that client revoked her membership. Planet Fitness judged that discriminating against this woman’s viewpoint—and intimidating those who might share it—was necessary to maintain a non-intimidating, welcoming environment. The ex-client has now sued Planet Fitness.
How is this Planet Fitness case different, in principle, from the Christian florist who declines to sell flowers for a gay wedding? Each business declined services to those whose viewpoints they disagreed with.
Examples of such discrimination abound, and involve not a little federal and state litigation. Consider Equal Employment Opportunity Commission v. Abercrombie & Fitch. A Muslim woman with a headscarf applied for a job at Abercrombie & Fitch, which prohibits its employees (or floor “models”) from wearing headgear. The company rejected the applicant, who got the EEOC to sue on the grounds that Abercrombie & Fitch abridged her religious freedom. So far, the applicant has won in federal court; the Supremes will rule on the case soon.
Think about the costs involved in each of these acts of “discrimination.” If someone does not want to do business with you, they can do business with someone else. If you do not like Planet Fitness’s policy on showers, then go to a health club that has sex-segregated policies. If Abercrombie does not hire you, get a job at The Buckle. If one florist will not service you, got to another. This is the only way that a tolerably liberal society can deal with difference, as Michael Greve has recently argued. No one is forced to shop somewhere; no one is forced to hire or provide services. All transactions are conducted on a voluntary basis. This is a policy of freedom and equality: all people can refuse to do business with others and no one is forced to buy something at one place or work at another place.
Discrimination Law and Its Perils
Idaho is among the many states that is annually contending with a campaign to add “gender identity” and “sexual orientation” to its anti-discrimination laws. There are also movements at the federal level to pass the ENDA (Employment Non-Discrimination Act) that Republicans have so far prevented from becoming law.
Churches, including most prominently the Mormon Church, have shown some willingness to cut deals with “gender identity” activists, trading support for state “non-discrimination” acts for religious exemptions allowing certain bodies to continue such discrimination. Support for such a grand compromise is flawed in large part because it fails to recognize that religious freedom is part of a broader personal freedom.
Some people reasonably think that “transgender”—a word and idea of recent vintage and hence subject to reasonable doubts about the theory underlying it—is an invention, designed to accelerate the breakdown of our already confused notions of sex. Some people think that the novelty represents new and true insights into the human condition. Must people be forced into the second of these views or the first through the coercive power of laws? Think of a family restaurant becoming a hang out for “gender identity” activists (perhaps because of its location): It was never the dream of that restaurant owner to have such a clientele. The “gender identity” laws would force such proprietors to abandon their visions of their own future for a brave new world.
Putting the coercive power of law behind an amorphous, ever-shifting category as “sexual orientation” undermines a steady, predictable rule. Can anyone say for sure what genders there will be in the future? Would you want a Little League coach changing genders or even undermining the steady view of sexual identity that is part of human happiness? Would it be a bit disturbing, reasonably disturbing, for an investment firm—institutions built on stability and trust—to have an employee completely change genders? Perhaps some investment firms would like to be “transgender” friendly; others would not. In a liberal society we might accept this difference as a genuine recognition of diversity.
Non-Discrimination Laws Merely Shift Discrimination
These “non-discrimination” laws do not end discrimination: they change what is being discriminated against. They make illegal a range of choices that were previously legal, without at the same time affording anyone more freedom than they currently have.
There are exceptions to this rule of liberty and equality, but all such exceptions should be thought of as temporary violations of our most compelling public principles that are necessary to accomplish even greater public goals (racial discrimination, for example). Racially sensitive laws were absolutely essential in the aftermath of slavery and Jim Crow, if we were to become one country. The scale of the problem and the ways in which law was implicated in those problems required very dramatic public action to minimize a clear and deeply embedded, obviously harmful discrimination. This is why all major efforts to end discrimination through law wrap themselves up in the Civil Rights movement.
Yet such “non-discrimination” laws are prudent violations of our principles and should be temporary and reflect some real, widely-accepted category. Race is one such category. Sex could be another category. One should be looking to end such laws once the problem of discrimination is mostly solved. “Gender identity” does not fall into these categories.
State campaigns to promote “non-discrimination” are part of an effort to give all or some members of society a “trump card” they can play when they meet resistance to their lifestyle or convictions. These trump cards, granted to all or most citizens, do not allow us to organize a genuinely free society, where individuals can decide for themselves with whom they will associate and do business. They blacken the skies with crisscrossing lawsuits as a way of dealing with discrimination: everyone can feel aggrieved and all can have a cause for action.
In a liberal society, Planet Fitness can turn down the business of clients because of their viewpoints, just like the florist. A gay bar can turn down the fundamentalist Christian who would like to work as a bartender, just like Abercrombie & Finch can discriminate on the basis of religious exhibitions. My mantra: end discrimination law (for the most part and at the soonest possible date). Discrimination, like the poor, will always be with us.