Sex in Public.

Author:Sepper, Elizabeth

ARTICLE CONTENTS INTRODUCTION 80 I. SEX SEGREGATION IN LAW AND CUSTOM 86 A. "The Last Great Piece of Americana": Preserving the Male Public 88 B. "The Myth of the Evil Female": Regulating Sexuality 90 C. "Man's Last Retreat": Safeguarding Masculinity 94 II. THE FIGHT TO "DE-SEXIGRATE" PUBLIC ACCOMMODATIONS 97 III. CHALLENGING "A WOMAN'S PLACE" 105 A. Accessing Economic Opportunities 105 B. Moving Freely Within Public Space 110 IV. ASSERTING FREEDOM FROM SEXUALITY AND HETERONORMATIVITY 114 A. Attachment to a Man 115 B. Disorderly Bodies and Sexuality 120 C. Dress and Decorum 126 V. PURSUING TRANSFORMATIVE INTEGRATION 128 A. Against the "Masculine Rites and Rights" of Sports 129 B. The Sanctuary of Restrooms 136 CONCLUSION 143 INTRODUCTION

One winter's evening in 1970, Carolyn Anderson suffered humiliation over a perfectly ordinary cocktail. Anderson planned to meet her husband at P.J. Clarke's, a New York City establishment. She was early; upon entering, she saw a familiar "RESERVED" card, a signal that women were "not wanted" at the bar. (1) Anderson sat down at a table but, after a few minutes, approached the bar to ask for a cocktail. "From then on," Anderson explained in a letter to feminist attorney Faith Seidenberg, "the bartender subjected me to most viciously hostile treatment." (2) She eventually left, telling the bartender she preferred her money to the drink. The treatment was not new to Anderson, but the insult stung, perhaps because she found the bartender "unusually threatening." (3) Maybe the date made a difference: just four years earlier, advocates had founded the National Organization for Women (NOW) to pursue equal opportunity under law. (4) Radical activists had begun public protests, a broad range of women had joined "consciousness-raising" groups, and women's liberation was often in the news. Anderson decided to "educat[e] [her]self concerning [her] rights," and she asked Seidenberg, "[W]hat are the laws governing the serving of a lone woman at a commercial bar?" (5)

The answer to Anderson's question would have disappointed her: at the time, only one state offered recourse against sex discrimination in public accommodations--the legal term for public-facing entities other than the workplace. (6)

State laws passed after the Civil War and Title II of the newly enacted Civil Rights Act of 1964 barred race, national origin, and religious discrimination in public accommodations. But neither the federal law nor the states' laws included "sex" until Colorado became the first to do so in 1969. (7) In the late 1960s, women confronted rampant sex discrimination in commerce, leisure, and civic life. The kinds of commercial spaces where the Mad Men of the business world congregated refused to open their doors to women. Bars and diners hung signs: "No unescorted women." (8) Professional organizations often confined women to second-class membership. Credit institutions would not lend married women money in their own names. Civic institutions from Little League baseball to the Junior Chamber of Commerce excluded girls and women. United Air Lines even flew "Executive Flights" reserved for male customers. (9)

In less than a decade, the legal landscape changed dramatically. Building explicitly on the civil rights sit-ins of the 1960s, NOW, often joined by other groups, protested in the streets, litigated in the courts, and lobbied in legislatures for state laws prohibiting sex discrimination. By the end of the 1970s, thirty-one states and many more cities barred sex discrimination in public accommodations. (10) Today, all forty-five state public accommodations laws encompass sex discrimination. (11) Although statutory language varies, a representative statute references any "business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public." (12) As a general principle, public accommodations laws apply to any entity that enters commerce and opens to the world at large. (13)

This Article provides the first history of sex in public accommodations, drawing on original archival and case-law research. Public accommodations emerged in the late 1960s and '70s as a central battleground over sex classification, sexuality, and gender roles. For feminists, their opponents, and state actors, sex equality in public came to mean more than formal equal treatment of males and females. Rather, this Article argues, equality in public accommodations had three dimensions--access to the public sphere, freedom from sexual norms, and transformation of institutions. Women demanded a legal right to enter public space, but equality was not limited to mere access. It required freedom from dominant heterosexual norms that made women's attachment to men determinative of their movement and activities, in exchanges from ordering a cocktail at a bar to requesting a loan to buy a car. Sex integration, its supporters hoped and its opponents feared, would transform institutions central to dominant masculinity, from baseball fields to bathrooms.

The history recounted in this Article provides a new and important touchstone for contemporary legal controversies. Today, debates continue to rage over sex in public, from same-sex wedding cakes and bathroom wars to sex-segregated sports and breastfeeding in public. But little historical or legal scholarship exists to inform the interpretation of the public accommodations statutes at the core of these disputes. (14) Formal legislative history that might explain statutory meaning is typically lacking. (15) And the cultural memory of this sex-segregated public and its (partial) undoing has faded. (16)

By analyzing the legal reforms of the 1970s, this Article illuminates the meaning of "sex" in public accommodations laws. As Part I explains, the sex discrimination that the feminist movement confronted originated in older periods of anxiety over gender roles and sexuality. The sex segregation of public spaces derived from three sources: the separate-spheres ideology of the mid-nineteenth century, which assigned women to the home and men to the market; heterosexual norms that emphasized the sexual vulnerability of respectable white women while simultaneously constructing other women as sources of sexual disorder; and defensive impulses to preserve dominant masculinity in male-only spaces such as gyms and barber shops.

Beginning in the late 1960s and through the 1970s, feminist advocacy challenged these ideologies to dismantle much of the sex segregation and exclusion that characterized public accommodations--as Part II details. Women of color had pioneered feminist public accommodations activism in the early '60s, when they challenged the intersections of race and sex discrimination. Just as it did for the civil rights struggle, public accommodations served as kindling for feminist mobilization later in the decade. Sex discrimination in public was pervasive, structuring interaction between the sexes and shaping relations among women. Women of varying backgrounds recognized its injustice and sought equality.

Though women of color played important roles in public accommodations advocacy, activists were predominantly white middle-class women. Class and race privilege shaped their sense of entitlement to public spaces and resources. Through the addition of "sex" to state statutes, activists hoped to achieve "full and equal enjoyment" for both women and men of accommodations ranging from the commercial (restaurants, bars, and credit unions) to the social (athletic organizations, civic groups, and children's activities). Not everyone easily accepted the laws, however, and their precise meaning was up for grabs.

Debates took place along three dimensions: (1) challenges to the notion of a "woman's place," (2) rejection of heterosexual dependency, and (3) the destabilization of dominant masculinity. Although these dimensions cut across market sectors, we focus on salient case studies: the business lunches and men's clubs that relegated women to subordinate places in the market; the credit practices, bar customs, and dress codes that enforced compulsory heterosexuality; and the sex-segregated sports and restrooms that reified dominant masculinity.

Sex discrimination in public imposed both material and dignitary harms, as Part III argues. Middle-class women who had begun to advance in professional careers resented their exclusion from men-only business lunches, clubs, and professional organizations--public spaces that buttressed the glass ceiling. Beyond any economic effect, the denial of rights of access acted as a vivid symbol of women's subordination and second-class citizenship. Crossing into public spaces and roles that had belonged to men, feminists demanded these harms be remedied, even as business owners, male patrons, and some courts sought to preserve the status quo.

The advent of laws prohibiting sex discrimination in public accommodations began to deconstruct the legal architecture of compulsory heterosexuality. As Part TV reveals, equality in public accommodations meant delinking women's identity as market actors from their sexuality and marital status. Women, feminists averred, should be able to drink alone, borrow credit in their own names, and join clubs as full members. Administrative agencies, courts, and lawmakers often agreed, rejecting policies justified by the construction of men as sexual predators and of women as, alternatively, sexual threats or sexual prey.

Public accommodations laws also held the potential to transform institutions through sex integration, as Part V contends. Feminist public accommodations activists aspired to use the laws to destabilize prevailing understandings of bodily sex difference, to challenge assumptions about the need for sexual privacy...

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