No Boys Allowed

 First, in the Sexes' intermix'd connection,
One sacred Right of Woman is, protection. – Robbie Burns

As we discussed last week, the exclusion of women from traditionally male institutions and programs has been repeatedly challenged and isn’t holding up.  Is the same true for women’s only institutions and programs? Anecdotally, it would be easy to answer in the negative.  In the news last week, the Georgian Court hotel in Vancouver announced it was looking at expanding its Women Only floor to add a second. In an interview on the CBC, hotel employee Lisa Jackson, stated “It’s not meant to be exclusionary whatsoever”. That, of course, is absurd. It is absolutely meant to exclude men.  A hotel in Denmark which apparently was one of the first to offer the exclusive floors was found to be in violation of that country’s discrimination laws. There are many other hotels that provide the same service now. Women’s fitness clubs also have also proliferated and seem to have survived various challenges. Even where the challenges have been made by transsexuals and transgendered person.  In Macdonald v. Downtown Health Club.  The women’s only standard is a high one. For example, in Nixon v.  The Vancouver Rape Crisis Centre, the Centre was justified in excluding  Nixon form a counseling position because she hadn’t always been a woman.   A few weeks back I mentioned the Hooters case settling with Hooters explaining that being female was a bona fide occupational requirement for its job of serving beer and chicken wings.  In a recent court filing, a man claims he was fired from late night show host Jimmy Fallon’s production team because Fallon prefers to hire women.  Ladies’ nights at Night Clubs have also been mostly unsuccessfully challenged. Is the law really lopsided? Are men getting a bad deal?

In one recent Ontario case, Carter v. EFTO,  a male union member of a union comprised almost entirely of women complained that  “the policies and practices of the Elementary Teachers Federation of Ontario (the “ETFO”) exclude men from approximately 50% of all education programs and also exclude men from 5 out of the 14 elected Executive positions. The Human Rights Tribunal dismissed the case on the basis that women have been historically underrepresented within the EFTO at annual conferences, as local presidents and  as chief negotiators. Relying upon the fact that women face systemic discrimination in society and in the EFTO in particular the panel noted that the EFTO’s programs were designed to relieve against that discrimination. Indeed, s. 14 of the Ontario Human Rights Code provides:

A right under Part I [ the right to be free from discrimination] is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

Interestingly, the Tribunal held, based on a Court of Appeal decision, that this section precludes members of historically privileged groups, i.e. , men,  from even challenging the law. In other words, an attack on affirmative action programs, or “reverse discrimination” can not be made by anyone other than a member of an historically disadvantaged group.  Accordingly, Mr. Carter’s challenge to his union’s programs was dismissed on the basis that he did not have the legal right to make a complaint.

Affirmative action programs have often come under attack in the United States as being a denial of equal opportunity ; in Canada, the Charter of Rights and Freedoms makes such programs legal by setting out that the equality provision in s. 15

does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Where it is taken that there is a disadvantaged group, then a reverse discrimination not only in substance, but even in procedure as set out in the OHRC is not subject to challenge.There is no doubt that affirmative action is useful to help speed the correction of an historical denial of opportunity. It is unlikely that Jimmy Fallon, or even the Guardian hotel have as their goal the amelioration of historical disadvantages.  

The other reason for women’s only clubs and programs is safety.  As the lines from the Robbie Burns poem above suggest,  where the sexes are mixed, safety must be considered. The Georgian Court Hotel cites security as one of the reasons it provides women’s only floors. In the Brampton Youth Hockey case discussed last week, safety is mentioned often in the case as one of the major concerns with the policy. The same is true in the Blue Heron Casino case also discussed last week.  In those cases the organizations, though having to provide equal opportunity for women still ran afoul of the law because protection of safety wasn’t enough.  For the Hotel, the question will arise about men not being able to work on the women’s floor.  How differently will such challenges be treated, than that in the decision of the Blue Heron Casino where a woman was being discriminated against because she wasn’t given the position that involved cleaning the men’s washroom? 

At a Robbie Burns dinner this year I heard a woman make an impassioned argument that Robbie Burns wasn’t a womanizer, but rather a man who loved women.  And as Burns pointed out more than 200 years ago:

There was, indeed, in far less polish'd days,
A time, when rough rude man had naughty ways,
Would swagger, swear, get drunk, kick up a riot,
Nay even thus invade a Lady's quiet.

Now, thank our stars! those Gothic times are fled;
Now, well-bred men-and you are all well-bred-
Most justly think (and we are much the gainers)
Such conduct neither spirit, wit, nor manners.

Or,  as the old Virginia Slims cigarette ad states:  You’ve come a long way baby.