The Ludwig von Mises Institute

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Around the country, sports entrepreneurs have been responding to a perceived social problem by doing what they do best: efficiently serving customers. The advent of the work-out craze led to the blossoming of a prospering health-club industry. Along with growth, however, came certain problems, some of which are the result of men and women using the same fitness facilities.

Female exercisers found coed health clubs undesirable. Some women cited modesty concerns. Some recalled past rape or abuse. Still others opted out due to religious concerns. And many simply did not want to be intimidated by large, sweaty, leering men.

What to do? The statist solution is to take and waste resources "studying the issue" in search of a "solution we can all live with," and simply squashing private-property rights with vague, easy to gerrymander sexual harassment laws. The free-market solution is undertaken by entrepreneurs like Mark Harrington, co-owner of Healthworks, one of thirty-two all female health clubs to appear in Massachusetts in recent years.

This, however, is more than sexual egalitarians can bear. When Healthworks opened in 1996, it had the misfortune of placing its facility across the street from the apartment of Boston lawyer James Foster. Foster immediately applied for membership and was denied, being informed that the facility was all-female. Being familiar with sex-discrimination law in Massachusetts and elsewhere (while living in New York City he filed several complaints against Manhattan bars that served free drinks to women during happy hours), he filed suit at the end of 1996 citing sex discrimination.

It is hard not to sympathize with Foster's argument. During the past 35 years courts have forced more and more all-male organizations to open their doors to women. Business organizations such as the Rotary Club must admit women. Military institutes such as the Citadel and VMI were made to admit women and then make special accommodations for their new recruits.

Female reporters have even used the court system to force their way into men's locker rooms, not unlike the health clubs in dispute. Foster says that what's good for the gander is good for the goose. "If men cannot close their doors, neither can women." Indeed, according to Massachusetts statutes and its constitution, he had a very good legal point. In December of 1997, a judge ruled in Foster's favor.

In a brilliant show of inconsistency, however, the Massachusetts Legislature passed an amendment to the state's anti-discrimination law allowing an exception for same-sex health clubs. The amendment was successfully lobbied for by the state's same-sex health clubs and the approximately 50,000 members they serve, in addition to some Jewish groups.

As the issue heated up, it pit sister against sister. Several local women's groups championed the amendment, now gaining firsthand knowledge of how anti-discrimination law, ostensibly meant to protect them, actually reduces their welfare. The state chapter of the National Organization for Women (one should say some women) came out against the exception, fearing it would open the door for more individuals exercising their right to exclusion. Let's hope so. This is the exception that demonstrates the destructiveness of the rule.

The crux of the matter is that the amendment passed into law is thoroughly inconsistent with the entire egalitarian ideology legislated into the Massachusetts State Code. If lawmakers see that the right to exclusion allows female exercisers to increase their state of satisfaction, without infringing on the rights of would-be male health-club members, why doesn't such logic apply to the rest of social activity?

The exception to the public accommodations law should not even be necessary. There should not be any laws encroaching on the right to free association, which implies the right to exclusion. If it's right for all-female health clubs (and it is), it is right for landlords who do not want to rent to certain tenants.

It is only the free market that allows everyone in society to arrange his social dealings as he sees fit. If society feels that there are differences between men and women that can foster conflicts in certain situations, then entrepreneurs will find it profitable to offer goods, such as same-sex health clubs, that satisfy wants stemming from those differences.

In which case, radical egalitarians can vote with their own feet and their own dollars, creating other profitable opportunities for those entrepreneurs who invest in coed health clubs. All this takes place without coercion and without anyone getting his property taken away from him.

The patrons of Healthworks understand this. Mr. Harrington has grudgingly decided to allow Mr. Foster into the health club if the new amendment is found in violation of the Constitution. Describing the mood of his customers, he revealed, "There's no love lost between our members and Mr. Foster."

While the state of Pennsylvania, like Massachusetts, has also allowed for female-only health clubs, the enemies of liberty are persistent. A California court abolished women-only rooms in coed health clubs. The anti-capitalist mentality abounds. The passage of the Massachusetts amendment brought howls of protest from all corners of statism.

The solution for Massachusetts, of course, is to stop debating about a little legal exception, and begin the business of abolishing the entire public accommodations law. The case of Healthworks increasing the welfare of women is but one example of how the free market, not government anti-discrimination laws, is the only institution that allows for the peaceful coordination of conflicting interests. If we want to return to a culture of peace and gentility, then we should make such exceptions the rule.

Shawn Ritenour teaches economics at Southwest Baptist University.

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