What ‘Civil Liberties’ Are We Defending, Anyway?

By | July 20, 2011

From the editors

The following is a guest reaction by Christopher Wolfe, a PhD student in politics at Claremont Graduate University.

The recent debate over CUA’s single-sex housing policy is the newest episode in the ACLU’s attack on what they call “gender identity.” The case with CUA (mixed-sex dorms) is actually mild compared to what the ACLU has been pushing for in other colleges accross the country: mixed-sex dorm rooms.

As bizarre as that sounds, this logical conclusion of their civil liberty argument is being pushed for in many schools, including the undergraduate colleges in Claremont where I’m currently getting my PhD.

I recently participated in a written debate with the student head of the ACLU in Claremont over this issue, and the crux of the issue seemed to come down to the following:

What civil liberties is the ACLU defending exactly? Fair and equal treatment of each woman and man certainly is a civil liberty we should fight for, but that is not what is at stake with gender separate housing. Whenever the word “separate” is used, people assume some kind of unfair discrimination. The word “separate” recalls the famous 1954 desegregation case, Brown v. Board of Education, in which the Supreme Court rightly overruled the racist “separate but equal doctrine” that prevented blacks from attending local public schools. However, separate dorm rooms for women and men say nothing about either gender’s superiority.

Differences between citizens are recognized all the time by the government; without them, we could not have a progressive income tax, for example. Recognizing differences is only a violation of civil liberties when citizens are mistreated on the basis of indelible characteristics such as race, as blacks were back in the 1950s. Blacks required the status of a “protected class” to prevent the unfair discrimination of segregation.

On the other hand, there is no discrimination based on indelible characteristics in the case of same-sex housing, and affected students do not merit the status of a protected class. People who don’t believe in “biological sex or gender identity” can always attend some other private college. For colleges to delve into the minds of its students and protect every imaginable opinion would be impossible and contradictory. That is why the premise of the ACLU’s “civil liberty” argument is absurd.

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  • Matthew Barry

    Hello, this is an interesting development. Thank you for sharing. Is there litigation regarding this issue? Or is there just speculation about whether separate dorm facilities violate Equal Protection? I’m just curious.

    Also it may be worth pointing out discrimination based on gender recieves intermediate scrutiney based on the precedent that has been set by the Supreme Court of the United States, which is to say that not every kind of discrimination based on gender is prohibited by the Constitution, but only discrimination that is not “substantially related to an important state interest”. To my knowlege, gender classifications based on biological differences sometimes meet these criteria. For instance, this is what allows us to have separate bathrooms in public places for men and women. These separate facilities, as you note, do not enforce a social hierarchy of gender superiority. Rather, they simply respect some legitimate differences between the sexes.

    It seems to me that separate dorm room facilities should be able to recieve similar treatment. Although traditional gender/role stereotypes, such as barring women from the workplace based on the idea that they belong at home, have been found to violate Equal Protection, it would seem a stretch of the imagination to relate separate dorm rooms to traditional gender stereotypes.

  • Andrew Haines

    Matt,

    There isn’t any litigation, yet—especially since the changes won’t even be enacted in practice until this Fall. But this law professor from GW plans to change that (http://www.cathnewsusa.com/2011/06/law-prof-to-sue-cua-over-single-sex-dorms/).

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