RUTHFULLY YOURS

A women-only social club is being investigated by the New York Commission on Human Rights. It’s almost certainly illegal.The Wing is a women-only social club and workspace in New York and Washington, D.C. One of its founders worked for Hillary Clinton’s presidential campaign, and its in-house magazine, No Man’s Land, once featured a trans woman named Hari Nef on the cover. Members say it empowers them, allows them to work without the specter of sexual harassment that lurks around so many corners, and provides them with a valuable social network. It is “not for everybody in the whole world,” one of its members told Jezebel, “but for a specific slice of it” whose members share “certain community values.” Score one for free association.

Except the Wing, precisely because it is a women-only social club and workspace, appears to be in plain violation of New York’s public-accommodations law. Jezebel’s J.K. Trotter has the story. It is illegal in New York, as it is across the country, for businesses that provide public accommodations to “deny” the “full and equal enjoyment” of those accommodations to someone because of his gender (or race, creed, sexuality, etc.). There are exceptions: Groups that have fewer than 400 members and meet certain criteria can qualify as “distinctly private” clubs, which are permitted to discriminate. Meanwhile, larger businesses can apply for exemptions in the “bona fide interests of public policy,” though only three such exemptions have been granted in the last ten years. The Wing has more than 1,500 members, and has not applied for an exemption. Therefore, Trotter reports, it is under investigation by the New York Commission on Human Rights. A civil-rights litigator tells him the group is “likely illegal.”

The possibility that a trendy social club espousing progressive values and contributing to female empowerment is illegal has led to some wishcasting. Law professor Melissa Murray tells Trotter that the investigation is “patently absurd,” and finds the notion that anti-discrimination laws might apply to women’s groups “ludicrous.” Because the mayor of New York is Bill de Blasio, perhaps the Wing will survive: A city spokesman tells New York magazine that the mayor “is fully supportive of the Wing’s mission.” But whether or not New York files suit, it should not be particularly controversial to assert that a business that both furnishes public accommodations and discriminates on the basis of gender might be on the wrong side of an anti-discrimination statute.

Such statutes are the essential ingredient to the settlement that concluded the civil-rights era, in which Americans replaced a legal regime that privileged free association in public places with one that did not permit blatant discrimination on the basis of race, sex, or creed. Almost everyone save for card-carrying members of the Libertarian party sees the Civil Rights Act of 1964 and the local laws that mirror it as good developments. Yet the liberal desideratum underpinning those developments — the belief that the law should be a disinterested guardian of equal treatment in the public square — has yielded in some progressive circles to the belief that aiming for equality is a sinister thing to do.

The writer Wesley Yang captures the shift better than I possibly could. “Does equality really mean . . . equality?” asks Yang. “Even to ask this question will make the asker seem slightly suspect to the progressive mind. Increasingly, the ‘level playing field’ — an abstraction that has always been something of a fiction — has come to be seen as not just insufficient for the attainment of ‘true equality,’ but itself an instrument of inequality.”

Hence Trotter’s conjecture that the Wing might not be an “appropriate” target of a lawsuit. Hence Murray’s disbelief, as conveyed to Trotter, that “a law that was meant to provide access to women” could “prevent them from having access to each other.” Law professor Julie Suk tells Trotter that the New York public-accommodations law was designed “to get rid of barriers to the advancement of women and minorities in the business and professional life,” and the implicit contention motivating Trotter’s article is that the law is only justified insofar as it does so. Free association is okay — as long as it furthers the right goals.

The thing about anti-discrimination laws, however, is that they tend to be stubborn and categorical. They don’t care that some progressives think discrimination is only discrimination if it is carried out by a powerful group.

The thing about anti-discrimination laws, however, is that they tend to be stubborn and categorical. They don’t care that some progressives think discrimination is only discrimination if it is carried out by a powerful group. University administrators, who take themselves to be accountable to the ideological demands of student activists, have found creative ways to deploy unequal rules in service of ostensibly progressive goals — take Harvard’s temporary exemption of women-only groups from its ban on single-gender associations for example — but it seems unlikely that the government will begin exempting so-called marginalized groups from anti-discrimination laws en masse.

I think free association is important, and I doubt that a neutral legal system suffices to solve the problems that some members of marginalized groups indeed face. There are plenty of good reasons why genuinely private clubs that discriminate should be allowed to exist free from government interference: People ought to be able to associate with whom they please to some extent, and it’s natural to expect associations to form among people who have things in common. Moreover, it’s foolish to claim that racism and sexism have been extinguished from the United States. In response to the investigation into the Wing, Nef, the trans member, says that “women deserve a safe space.” In the wake of so many revelations about powerful men preying on women, it is hard to quibble with her.

But in the Wing’s case the law renders these concerns moot. Women might deserve a safe space, but it can’t be this safe space. The Wing is not a private club; it is not currently exempt from the law; and no exemption should be granted. If it’s foolish to deny the persistence of racism and sexism in contemporary American life, it is destructive to assert that “women and racial minorities” deserve special legal treatment simply by virtue of being women and racial minorities. To argue for “free association for me, but not for thee” is to feed the forces balkanizing the country and to undermine the goal of a public square accessible to all. But as long as some progressives continue to peddle a politics of critical-race theory distilled for twelfth-graders and tailored to score points in online arguments, we can expect stories like this to proliferate.