Column: Do we really need a law mandating gender-neutral toy sections at stores?
I can think of few things more unnecessary and retrograde than toy departments separated by gender. How, in 2021, can anyone still think that dolls and cooking equipment are for girls while building blocks and sports paraphernalia are for boys? Obviously, this kind of marketing reinforces stereotypes that can affect the way children see themselves and each other for the rest of their lives.
But I also think it is wrong for California’s Legislature to make gendered toy sections in department stores illegal, which is what AB 1084 would do if it were approved.
You don’t have to be a Republican or a fanatical believer in the free market to think the toy bill goes too far.
Nor do you have to be anti-feminist. I want to see more female scientists, mathematicians, engineers and firefighters. I’m all in favor of the more gender-inclusive Potato Head that caused such controversy recently.
But the toy bill is legislative overreach — a heavy-handed approach to a problem that doesn’t need to be solved by government.
Assemblyman Evan Low (D-Campbell), who was coauthor of the toy bill with Assemblywoman Cristina Garcia (D-Bell Gardens), argues that government has a responsibility to step in and rectify social inequities when markets alone fail to do so. “Government is here to work for the people, not for the corporations,” he said in an interview. “We’ll use the Constitution and the authority we have to create as inclusive a society as we can.”
But should the role of government really be that expansive? I support higher minimum wages, tough health and safety laws to protect workers and strict environmental regulations, but I also believe private businesses should be left to make their own decisions whenever possible. Government should step in only when there is a need to do so, when it can be done effectively and when there is no less intrusive solution available.
Some of these same issues came up three years ago when California enacted a law requiring publicly held corporations to appoint women to their boards of directors by the end of 2021. (The number of women depended on the size of the board.) In that case too, I supported the objective — gender diversity — but was reluctant to see it imposed by the government.
Women have unquestionably been kept out of the seats of power for too long, and the market has shown it won’t fix the problem on its own.
But at the same time, it seemed awfully presumptuous of lawmakers to tell the shareholders of private sector companies who should sit on their governing bodies. It also seemed like just a first step in an open-ended experiment in social engineering — and indeed, the law was expanded in 2020, for better or worse, to mandate a specific number of board seats for African Americans, Latinos, LGBTQ people or members of other specified underrepresented communities.
How far will California take this quota system, and is this really the best way to fight racism and sexism?
Jessica Levinson, a professor at Loyola College of Law, noted that the imposition of such strict demographic quotas, while well intended, could run afoul of constitutional prohibitions on racial and gender discrimination.
The toy bill strikes me as an easier case. It would prohibit “the use of signage ... indicating that particular items are for either girls or boys” at retailers with more than 500 employees.
One problem with the proposal is that it imposes a heavy-handed mandate from government even though the underlying issue remains controversial.
Furthermore, it raises the question: What’s next? As we push the envelope of government involvement in marketing decisions, could California tell grocery stores that they have to display their tofu at the front of the store and Doritos at the back because that would lead to better health outcomes? Could the Texas Legislature mandate the opposite of AB 1084: that stores must market toys to boys and girls separately, to keep our gender roles clear? Are those really roads we want to go down?
I prefer the old-fashioned approach: If a retailer is directing girls to the dolls and boys to the chemistry sets, boycott that store. Shop elsewhere.
Perhaps the most significant argument against the bill is that the problem it seeks to solve is already solving itself without legislation. Target and Walmart have already, to their credit, done away with gendered toy departments, as did Toys R Us. And even Low acknowledges that AB 1084 is just “codifying” what’s already happening in the industry.
So why would we go out of our way to impose unnecessary mandates?
Eugene Volokh, a law professor at UCLA, says that the gendered-toys bill could also face legal challenges because it is a government-imposed restriction on speech. Telling companies how their products may be promoted or sold could violate the 1st Amendment.
We all draw our own lines about how much government intervention is too much in an economy like ours. The toy law crosses mine.
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