The Yale Law Journal

October 2019

Sex in Public

Legal HistoryAntidiscrimination LawGender and Sexual Orientation

abstract. This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only LGBTQ people but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed “men-only” signs. Women held secondary status in civic organizations, such as Rotary and Jaycees, and were excluded altogether from many professional bodies, such as press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Financial institutions subsumed married women’s identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for “full and equal enjoyment” by both sexes. When “sex” was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to public spaces. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples’ wedding cakes to transgender people’s restroom access.

author. Elizabeth Sepper is Professor of Law, University of Texas at Austin School of Law. Deborah Dinner is Associate Professor of Law, Emory University School of Law. We are grateful to Barbara Welke, David Cohen, Deborah Widiss, Laura Weinrib, Fred Smith Jr., Robert Schapiro, Meredith Render, Jim Oleske, Maya Manian, Ron Levin, Ron Krotoszynski, Jill Hasday, Katie Eyer, Jessica Clarke, Mary Anne Case, Rick Brooks, Deborah Brake, Meghan Boone, Susan Appleton, and Amna Akbar for their helpful comments. Thank you to participants in the Law and Public Affairs Program Seminar at Princeton University; the Regulation of Family, Sex, and Gender Workshop at the University of Chicago; the Rutgers Center for Gender and Sexuality Law and Policy Workshop; and law school faculty workshops at Alabama, Drexel, Temple, Rutgers-Camden, SMU, Emory, and Washington University. This Article benefitted from capable and resourceful re-search and archival assistance from Kathryn Albrecht, Emily Bartlett, Annie Boring, Chloe Chapin, Alexandra Conn, Briggs DeLoach, Shack Hackney, McAriel Landa-Seiersen, Eliza MacLean, Mary Katherine Reid, Danielle Stephenson, Jayne Swift, and Mackenzie Ward. Last, we thank Scott Stern, Ela Leshem, Nikita Lalwani, and the staff of the Yale Law Journal for their superb editing.