As civil rights attorneys, we’re often asked our views about subjects that touch on or relate to discrimination but are not necessarily illegal. For example, a friend of mine from high school recently referenced a piece the New York Times ran last week regarding a group of California girls attempting to persuade the Boy Scouts of America (“BSA”) to allow girls to join its membership.
The girls are not making a legal argument, and they probably don’t have one. Title IX of the Civil Rights Act, which was meant to prohibit gender discrimination in education, specifically carves out an exception for organizations such as the BSA. Please bear with me for a bit of personal, non-legal commentary, as I think this discussion is nonetheless very much related to our gender discrimination work.
First, regardless of your views on the question of whether the BSA should or should not allow girls, you have to applaud this group of girls for joining the marketplace of ideas in a respectable way. Neither they nor their parents are trying to shame or strong arm the BSA. They’re showing incredible leadership and fortitude in their approach to this issue.
As for the substantive debate, I can personally see both views and am somewhat torn as to which is better. Notice that I said, “better,” and not “correct” or “right.” I don’t know that there is an objectively right answer here. I think the BSA will have to decide for itself what is best, which is probably what should happen, for legal and other reasons.
More specifically though, I’ve been seeing this discussion pop up more and more. My own Facebook friends provide great examples. One friend’s young boy recently lamented that he wants an easy bake oven, but the ad only showed girls playing with it; so, he concluded, “it’s probably not for me.” Another friend’s four-year-old was recently discussing whether men or women can be “bosses” in the workplace. And, sadly, another had his three-year-old child kicked out of his daycare because he really wanted to wear a dress for a few days.
As a society, we’re grappling with the question of whether there should be things in our world that are “just for boys” and/or “just for girls,” or maybe “mostly for girls/boys,” etc. While I’m not entirely sure of the answer to that question, as a civil rights and discrimination lawyer, I tend to think that those types of “his and her” views can be dangerous to automatically subscribe to without a second thought.
That same philosophy was used to encourage views that we consider today to be irrational vestiges of long outdated notions about men and women’s “proper” places in society. For example, things like politics and entrepreneurship were for men and things like cooking and having babies were for women, so women weren’t allowed to vote or run businesses, etc. I will concede that there are huge contextual differences between these examples and the Scouts discussion, but one also has to concede that the underlying philosophies are at least somewhat connected.
This is a nuanced area that’s difficult to grapple with as a society, but we’re absolutely better off for doing so.