After Catholic University president John Garvey announced his decision to restore single-sex housing on Catholic University’s campus, George Washington law professor, and perennial gadfly, John F. Banzhaf III complained to the D.C. Office of Human Rights that Garvey’s action violated D.C. law forbidding sex discrimination. Earlier this week, the D.C. agency issued an order dismissing Banzhaf’s complaint. (H/t Eugene Volokh.)
The D.C. agency ruled that D.C. law “does not forbid colleges and universities from making sex-based distinctions between students” but instead prohibits the “imposition of ‘disadvantageous terms or conditions’ because of stereotypes about social roles or the inherent capabilities of the sexes.” It stated that Banzhaf’s position “would lead to absurd results,” including “a prohibition on same-sex bathrooms, locker rooms, and sports teams.”
I’ll confess to a somewhat mixed reaction to Garvey’s victory. On the one hand, I heartily support Garvey’s decision, and, at a visceral level, I’m very glad that he won. The idea that civil law would dictate to a private university (to a Catholic university, no less) that it can’t have single-sex dormitories strikes me as deeply offensive.
On the other hand, though, I wonder if the agency’s order is actually right as a matter of law or whether it instead is an opportunistic evasion of a much larger problem. The problem that I have in mind is that the laws against sex discrimination and against various other forms of non-racial discrimination routinely adopt the template of the laws against race discrimination, with little apparent thought to whether that template is appropriate. Among the results is an ever-growing series of clashes with religious liberty, of which Banzhaf’s complaint is but one example.
Rather than have courts and agencies carve out congenial exceptions to broadly written anti-discrimination laws, I’d much prefer that legislators do the hard work of rethinking why it is that (1) prohibiting single-sex bathrooms, locker rooms, and sports teams strikes virtually everyone as absurd, while (2) virtually no one (other than some libertarians, I suppose) would question the good sense of a prohibition on single-race bathrooms, locker rooms, and sports teams. That rethinking might spur the development of a very different template for various forms of non-racial discrimination.