California Issue : Next Target: Sex Bias in Men’s Clubs

Ruth Mallery recalled that when she was a girl, the boys she knew had a way of getting into mischief because, she figured, they didn’t have enough to do.

So, hoping to ensure that boys in Santa Cruz had a place to play, the elderly benefactor donated $1.5 million to build a Boys’ Club--with the caveat that the money was to be used solely to help boys.

A few years after the club opened, Victoria Isbister, then 8, found that the neighborhood’s one swimming pool, the Boys’ Club pool, was closed to her simply because she is a girl. In her view, that was “really unfair.”

The conflict spilled into the courts. Lawyers for Victoria and four friends accused the Boys’ Club of sex discrimination. The case resulted in a state Supreme Court ruling last month that the club has to admit girls.

Feminists Take Aim

The court fight over whether girls can swim at the Boys’ Club may be child’s play when compared to what is to come. Feminists--armed with strong laws against sex discrimination and backed by a state Supreme Court that is giving the laws wide readings--are taking aim on California’s most exclusive men’s clubs as they have never done before.

Although they were viewed in the past as beyond the reach of civil rights laws, private clubs are the targets in several lawsuits that seek to force them to, if not admit women, at least move in that direction.

There is, of course, resistance. William Edlund, lawyer for one of the nation’s most exclusive men’s clubs, San Francisco’s Bohemian Club, said the attacks are based on an “egalitarian view that there should be no privacy enjoyed by anyone.”

“The argument they make is that, carried to its logical conclusion, if I want to come into your home, I can . . . and it doesn’t make a bit of difference that you don’t want to talk to me. I don’t have that right of privacy,” Edlund said.

Second Generation

Herma Hill Kay, a law professor at Boalt Hall at the University of California, Berkeley, called the suits a second generation of sex discrimination cases. The first wave of suits, filed in the 1970s, opened professions dominated by men to women.

Now suits are seeking to extend gains won in the workplace to clubs that, according to the argument, are important to career advancement because through clubs, members make beneficial contacts with business and political leaders.

“Career doors were open 10, 15 years ago. Now women are finding their careers are not progressing,” said Fredric Woocher of the Western Center for Law in the Public Interest, which joined a discrimination suit against Los Angeles’ Jonathan Club. In the 1970s, the center sued the Los Angeles Police Department to force it to hire and promote more women and minorities.

“If women are precluded from making the business contacts, they will never be able to advance to a truly equal position.”

The issue of opening clubs to women has arisen in part because the laws against gender-based discrimination are fairly new--California’s Unruh Civil Rights Act was amended in 1974 to outlaw sex discrimination--and those laws are being tested against clubs and private organizations, lawyers say.

Leaders of a few clubs, unable to argue that race alone can be used to exclude people, have taken tentative steps toward admitting some members of racial and religious minority groups. A member of Philadelphia’s Union League boasted a few years back that Democrats were being admitted. Women, however, remain on the outside.

Pressure for change comes not just from feminists. While the U.S. Justice Department is pulling back on efforts to attack discrimination, California Atty. Gen. John Van de Kamp’s office has joined on the side of feminists in several cases.

“What you are seeing is gradual, ever-increasing regulation,” said Deputy Atty. Gen. Marian Johnston, who helped argue the Boys’ Club case and who is pressing a sex discrimination case against the Bohemian Club.

‘Don’t Know . . . the Limits’

“I don’t know how far the limits are,” she said. “There probably is some point at which the constitutional rights of privacy and freedom of association (enjoyed by club members) would outweigh the state’s interest in ending discrimination. But you don’t know what the limits are until you test them.”

Van de Kamp’s office, acting on a request by Los Angeles Mayor Tom Bradley and Sen. Herschel Rosenthal (D-Los Angeles), is analyzing whether such organizations violate state civil rights law by excluding women and minorities and whether the state can revoke their liquor licenses.

Calling private clubs one of the “last real bastions” of discrimination and racism in the country, Rosenthal said in a letter to Van de Kamp, “These clubs . . . serve as powerful symbols of the exclusion of large segments of American society from traditional avenues of power and influence.”

The attorney general’s opinion, expected by the end of the year, will not be binding on lawyers or courts. If it holds that club policies violate civil rights law, however, it might be used as a springboard for a suit by the state or for legislation.

In the Boys’ Club case, the court, saying its 5-2 ruling was narrow, held for the first time that the Unruh Act prohibition against sex discrimination in a business or public accommodation can be applied to a nonprofit group.

No Girls’ Club

The court said the club became a public accommodation by admitting any boy, age 8 through 18, while girls were at a disadvantage because in Santa Cruz there was no facility with a pool or gymnasium for them.

By ruling that the term business could include a private club, lawyers and legal scholars said, the court established a precedent that may lead to rulings that further open up private groups.

There is little doubt that the court takes a dim view of differing treatment of the sexes.

A few days before the Boys’ Club case, the court declared that sex-based promotions, among them ladies’ night discounts at bars, violated the civil rights act. Such promotions discriminate against the opposite sex, which does not receive the price break, the court said.

“This court has sent out these same signals before. It says, ‘We don’t decide this larger issue in this ruling.’ But when the larger issue comes up in the next case, the court goes the same way,” said Robert Bosso, lawyer for the Santa Cruz Boys’ Club.

Related Issues

Several suits pending in California courts raise related issues:

--A state appellate court in Los Angeles is deciding a suit challenging the membership practices of the Rotary Club, a businessmen’s organization. The suit began when Rotary Club’s headquarters revoked the charter of the Duarte chapter after it began admitting women.

--An appeals court in San Francisco is considering the attorney general’s claim that the Bohemian Club, whose membership includes President Reagan, illegally discriminated by refusing to hire waitresses to work at the club’s men-only hideaway in a redwood grove north of San Francisco.

--Last month, Los Angeles Superior Court Judge Norman R. Dowds, acting in a suit brought by the Jonathan Club against the state, ruled that the state Coastal Commission has authority to refuse a permit to the club to expand its Santa Monica beachfront facility.

The government refused the permit because, it charged, the club admits no minorities or women. (The club’s membership roster is private, as is its admission policy. Jonathan Club attorneys did not return phone calls from The Times.)

Deputy Atty. Gen. Anthony Summers said the state could have been open to a lawsuit if it had granted the permit to expand. Although a private club can have a selective membership policy, the state cannot take action that might be seen as helping such an organization, Summers said.

Major Test Expected

--The next major test of the law’s reach into private clubs probably will involve Los Altos Golf & Country Club. The club, usually open only to members and their guests, rented its golf course for a day in 1979 so that an electronics trade association could hold a golf tournament. Among the invited players was Billye B. Ericksen, then vice president of an electronics firm.

Ericksen sat down to lunch in the Men’s Grill before heading to the links, only to have a waitress and a bartender ask her to eat on a nearby patio instead. Ericksen sued for $150,000 but lost in Superior Court and the Court of Appeal.

In August, the Supreme Court agreed to review her claim that by opening to outsiders for the tournament, the club became subject to prohibitions against sex discrimination for that afternoon. If she wins, it will be the first time the state civil rights act is applied to an exclusive club.

“What happened to Ms. Ericksen can happen to any woman,” said Susan Schwartz of the Women Lawyers Assn. of Los Angeles, which, along with the California Women Lawyers Assn., filed a friend-of-the-court brief on Ericksen’s behalf.

“She was invited to what she thought was a public place and, among her peers, she was turned away. That is the sort of unannounced rule that makes it hard for women to succeed in business.”

“It’s a rapidly developing area,” said UC Berkeley’s Kay. “It’s that way because our views keep changing. Five years ago, sexual harassment (on the job) was not viewed as sex discrimination.”

There have been fewer than three dozen sex discrimination cases decided by the U.S. Supreme Court since 1971, when the justices ruled on the first case. The first case dealing with clubs reached the court only last year, and it ruled that the First Amendment right of free association does not preclude a state from enforcing its civil rights laws to require the Jaycees, with its broad-based membership of young business professionals, to grant women full status.

One reason for the activity in California is that the Unruh Civil Rights Act is broader than federal laws and laws in many other states. The state law specifically bans sex discrimination in public accommodations.

The parallel section of federal civil rights act does not single out sex, banning discrimination based on race, religion and nationality. Nationally, half the states have specific bans on sex discrimination written into their laws.

Yet nationally, courts tread carefully in the area and without consistency, reflecting ambivalence, Stanford law professor Debra Rhode said. For example, in New Jersey, Little League baseball is co-ed; in Texas, it remains all-boy.

‘An Exorbitant Price’

In California, that ambivalence is reflected by judges who must decide the issue in the courts but who seem unsure how to deal with it in their personal lives. At their annual convention last month, state judges took the tentative step of studying whether they should consider quitting single-sex clubs. The question of whether they must quit will not come up until next year.

That ambivalence was apparent on California’s Supreme Court. Maintaining that the Boys’ Club ruling would “strain our social fabric,” Justice Stanley Mosk said in dissent that the precedent ultimately would force scouting groups, men’s and women’s colleges and fraternities and sororities to open to the opposite sexes.

“Growing up into a world of sex equality is inevitable to all children, but the court-ordered elimination of traditional childhood activity is an exorbitant price to pay for accelerating the process,” Mosk said.

Justice Otto Kaus, who also dissented, cited studies showing that there are psychological advantages to separating boys and girls for at least part of their day.

“Who are we to say it is unreasonable for the club’s management to believe that there is a rational basis for giving boys a few hours a day when they do not have to carry their machismo on their sleeves?”

In Santa Cruz, the effects of the landmark Boys’ Club case are being felt.

‘State Has No Right’

“This is a privately funded organization. The state has no right to tell us how to operate,” Betty Elward, president of the club’s board of directors, said. Elward, however, is trying to comply with the ruling.

That effort is complicated because Mallery, the club’s benefactor, is revoking her endowment. Directors fear that the club will close by year’s end if no other money is found.

If the club closes, the 1,000 boys who are members will have no place to go after school and on Saturdays.

“If people want a club for girls,” she said, “they should go out and get the donations and build it.”

Victoria Isbister, 17, is concerned more with going to college and picking a career than with swimming in the neighborhood pool. She is proud, however, that she opened the door to a younger generation.

“I baby-sit, so I know a lot of younger girls. To me it is neat that they will have the choice to join if they want.”