OK to exclude heterosexuals?

A gay pub in Australia made headlines recently when it applied for an exemption from a state antidiscrimination law for its policy of selectively excluding heterosexuals -- and was vindicated by the Victoria Civil and Administrative Tribunal.

The pub's action was not based on anti-heterosexual animus, but on the owner's concern that an excess of straight clientele were making impossible the safe and comfortable atmosphere for gay patrons that was the pub's raison d'etre. The tribunal found that this policy was consistent with the state's aspiration to protect the dignity of its citizens. It reasoned that while heterosexuals had access to a great many venues where they could socialize, dance, romance, et cetera, the same was not true of gay men; and further, that the large number and at times disrespectful behavior of heterosexual patrons at one of a precious few gay venues the region might effectively deprives gay patrons of the same opportunities heterosexuals enjoy. In its own words:

The proposal will, in my view, benefit men, particularly gay men, by providing them an opportunity to dance and socialise in an environment which will be free from violence, and where they can, uninhibitedly express their sexuality without being treated with hostility or being singled out in any way.

As an additional reason, the tribunal reasoned that the policy might further public health, since

Gay men in a male-only environment, will be more ope[n] about their sexuality and in this setting it is far easier for Aids Council workers to discuss with them matters such as safe sex and protection against HIV Aids.

This decision, and the head-scratching and offense it is likely to cause in the United States, reflect a basic disagreement about the meaning of equality before the law -- namely, whether "substantive" or "formal" equality should be central. In the U.S., formal equality is the polestar -- the law protects suspect classifications, not minority groups per se -- which explains our uneasiness about affirmative action. In Europe, Canada, and Australia, substantive equality is the dominant paradigm, and greater asymmetry between the treatment of majority and minority groups is tolerated so long as it is in the ultimate service of social justice.

To date, the substantive-formal equality debate has been almost exclusively concerned with matters relating to gender, race, ethnicity, and to a limited extent disability. Outside of private associations unreachable by antidiscrimination law -- but occasionally debated within queer communities -- questions of preferring queers or excluding heterosexuals have never really come up, certainly not as legal matters. This has not, of course, stopped LGBT-rights opponents from using deceptive appeals to formal equality via the slogan of "no special rights." Indeed, LGBT advocates have had to expend plenty of energy explaining that LGBT-inclusive antidicrimination laws do strictly conform to the formal-equality principle.

All of which leads me to two conclusions: First, whatever the merits of the Victoria tribunal's conclusion, its approach will never be adopted within the United States. Second, this will not stop American opponents of LGBT civil rights from seizing on the Victoria decision as indicative of the kind of unfair favorable treatment LGBT people seek from the law.