And freedom of association.
In 2020, Olympus Spa, a Korean spa, refused to allow a transgender woman, Haven Wilvich, who had not undergone gender reassignment surgery, to be naked around naked women. The Washington State Human Rights Commission (WSHRC) then served the spa with a Notice of Complaint of Discrimination in March 2021. The owner and president of the spa objected but lost.
In “Washington Korean spa orders to drop ‘biological women only’ policy after trans complaint,” Yahoo?life, June 9, 2023, Carl Samson writes:
The spa, which features the experience of Korea’s traditional, sex-segregated bath houses called “jjimjilbang,” responded by maintaining its women-only policy. In a statement, owner Myoon Woon Lee and President Sun Lee said they are “unwilling to remake the ‘jjimjilbang’ we have worked so hard over many years to build and preserve, simply for the sake of promoting gender neutrality.” They also cited their Christian faith in their decision to keep the policy.
Samson continues:
WSHRC ultimately ruled that Olympus had discriminated against Wilvich. In a pre-findings settlement agreement to avoid prosecution, the commission ordered the spa to remove the term “biological women” from its website. The business was also forced to make staff members attend an inclusivity training. However, in March 2022, the spa sued Andreta Armstrong, the commission’s executive director, alleging violations against their First Amendment rights to free exercise of religion, freedom of speech and freedom of association.
What brought this up again in the news earlier this month is a judge’s finding. Seattle District Barbara Jacobs Rothstein rejected First Amendment suit by Olympus Spa et al. against Andreta Armstrong.
Two weeks ago the show “Gutfeld” on Fox News Channel had an interesting discussion of the case. Usually Kat Timpf, the resident libertarian, nails the principle. But unless I heard wrong, even she failed to make the case from the correct principle. One of the guests, a woman named Brooke Goldstein, argued that letting a person with a penis in with naked women violated those women’s rights to privacy.
But that’s not the key. They had no right to be naked without a person with a penis present. If the spa had wanted to allow a person with a penis to be present, the women who frequented the place would have had no basis for objecting on grounds of rights. (Unless, of course, the spa had contractually obligated itself to these women beforehand.) The entity whose rights are being violated is Olympus Spa and the right that the WSHRC is violating is Olympus Spa’s right to property. Olympus Spa is being told how it may use its property. The WSHRC is also violating Olympus Spa’s freedom of association, the spa’s freedom to associate with those it chooses to associate with.
But property rights and freedom of association are taking a back seat to the WSHRC’s phony right of someone who wants to go where she is not wanted
READER COMMENTS
MarkW
Jun 27 2023 at 9:56am
I agree with you on the principle involved. But ‘freedom of association’ really hasn’t been a winning argument for a while now and the women customers make for sympathetic victims than does any business owner, so I guess I’m not surprised to hear that’s the way the discussion went.
Roger McKinney
Jun 28 2023 at 10:15am
True, but it’s a right worth fighting for it’s respect again.
nobody.really
Jun 27 2023 at 9:59am
Fair enough. Likewise, a policy prohibiting discrimination based on race violates the property/free association rights of private business owners. Civil rights laws forthrightly infringe upon autonomy to promote equality; see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). We can agree or disagree about the merits of this trade-off as applied to any given protected class, but there’s nothing new about the trade-off.
Mark Brady
Jun 27 2023 at 1:51pm
“Unless, of course, the spa had contractually obligated itself to these women beforehand.”
Good point. Does anyone know whether the spa had contractually obligated itself to these women beforehand?
David Seltzer
Jun 27 2023 at 5:35pm
David, maybe this is a stretch. A restaurant is well known as strictly kosher and advertises as such. Assume someone demands the restaurant violate the kashruth by pressuring the establishment to serve them a bacon cheeseburger. Would the restaurant be charged with discrimination if they refused?
David Henderson
Jun 27 2023 at 7:09pm
I don’t think so, because the restaurant wouldn’t be discriminating. It would tell everyone that it refused to serve a bacon cheeseburger.
Richard W Fulmer
Jun 27 2023 at 6:14pm
If the spa goes out of business because of this ruling, could the ruling be considered a takings?
nobody.really
Jun 28 2023 at 10:20pm
Interesting question. It’s not an implausible scenario:
A Gospel of Egalitarianism: a review of Danielle Allen’s Justice by Means of Democracy.
nobody.really
Jun 28 2023 at 10:21pm
See https://lawliberty.org/book-review/updating-rawls-for-the-twenty-first-century/
Roger McKinney
Jun 28 2023 at 10:13am
Great points! Property is the guardian of every other right as James Ely wrote in The Guardian of Every Other Right.
Public accommodation laws have destroyed property rights for 200 years. They require that business owners surrender most property rights and the right of association to the state if they want to start a business.
nobody.really
Jun 28 2023 at 5:38pm
You raise a reasonable argument–except to the extent that you suggest that public accommodation laws are something new.
Sir William Blackstone, Commentaries on the Laws of England (1765–1769). See also writings of Prof. Charles Burdick (describing the duty of the “inn-keeper, or other victualler” as merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply”).
Roger McKinney
Jun 29 2023 at 4:04pm
Bur what constitutes a good reason? Seems to me the right of association is a good one. And being old doesn’t make it right.
nobody.really
Jun 29 2023 at 10:06pm
Presumably a “good reason” is whatever a judge/jury find it to be.
But your question prompts a follow-up question: How much do the public accommodations provisions of the US 1964 Civil Rights Act differ from the public accommodations provisions of common law? Perhaps not much; the real legal change may have arisen less from the wording of the statute than from the growing belief that a business owner’s desire to maintain racial segregation no longer qualifies as a “good reason” to maintain segregation.
HEY–respect your elders!
Oh, you mean the fact that a LAW is old doesn’t make the law right. Fair enough. Still, people sometimes express their objections to public policy as some kind of degradation or deviation from traditional or past policy. In these cases, it becomes relevant to point out that the policies they find objectionable are not necessarily new innovations; rather, their objections may simply reflect an ignorance about the status quo. For example, libertarians often praise the autonomy of common law property rights while failing to recognize that common law property rights have always included a prohibition on nuisance. Nuisance bars one landowner from using her land in a manner that would interfere unreasonably with another landowner’s use and enjoyment of his land–where a judge/jury determines which usages are reasonable. Thus, common law property rights have always been socially constructed and subject to change as social norms changed.
Anyone would be free to advocate some more absolute standard of autonomy. But that policy would not gain legitimacy through association with past practice; rather, the policy would qualify as a new (and arguably untested) innovation.
Roger McKinney
Jun 30 2023 at 12:23pm
Yes, hatred of property and the success of others is ancient. Historically, it was called envy. Helmut Schoeck points out in his classic Envy: A Theory of Social Behavior that envy causes societies to form institutions that kill innovation and economic development. Christianity suppressed envy enough in the West to launch the hockey stick growth in per capita GDP.
Public accommodation seems to me to be envy raising its ugly head. Competition is a much better way to handle discrimination than laws that destroy property rights.
nobody.really
Jun 28 2023 at 5:42pm
Oh, wait–you did acknowledge that public accommodations laws have applied for 200 years. We’re now past 250 years, but otherwise, fair enough.
Comments are closed.