The Peel is a Melbourne gay bar that, according to its owner Tom McFeely, isn’t gay enough. He applied for an exemption to the Victorian Equal Opportunity Act, legislation that would otherwise forbid him from keeping out women and straight men. And yesterday in the Victorian Civil and Administrative Appeals Tribunal he was granted that exemption.
According to The Age, the decision was not met with universal support:
WHEN Collingwood hotelier Tom McFeely decided to fight for the right to refuse entry to heterosexuals, he braced himself for a backlash. And a barrage of angry talkback callers proved him right yesterday.
But should McFeely even have had to apply for such an exemption? Anti-discrimination law is an issue that has divided liberals. There is a version of liberalism which holds that the way the state should treat its citizens – as impartially as possible – is a model for all institutions in civil society as well. Liberal states create space for people to live according to their own assessment of what makes for a good life, whether or not other people approve of it. But in a liberal society, the state may be the most powerful single institution, but private power has a large impact as well. To create space for the liberal individual, private as well as public power needs to be regulated. In alliance with egalitarian philosophies, this liberal idea helps explain why we have legislation prohibiting discrimination based on a wide variety of attributes.
Another version of liberalism holds that anti-discrimination law undermines freedom of association, the right to choose who we associate with and on what terms. Chandran Kukathas, in his book The Liberal Archipelago, argues that liberal states should tolerate quite illiberal communities in their midst, with practices including discrimination that would be unacceptable elsewhere. For some people to live their version of the good life requires institutions that support it, and for those institutions to work may mean excluding some types of people or regulating their behaviour.
The Peel’s problem seems to have been along these lines. According to the VCAT judgment:
If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to “swamp” the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely’s affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group’s enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.
From this perspective, it is good that anti-discrimination law is flexible enough to create exemptions. But what of discrimination that is against homosexuals? I had a debate with a blog reader last year who was complaining that a Catholic institution he was associated had declined to invite someone to it because that person was gay. My view was that such discrimination was a good reason not to be associated with that institution, and perhaps a reason not to be Catholic, but both freedom of association and tolerance required us to put up with other people’s religious beliefs, however misguided they seem.
I lean towards minimalist if any anti-discrimination law. Catholics should be allowed to exclude gay men, and gay men should be able to exclude people from their pubs. The Catholics may lose parishioners as a result, and the pub lose customers – in a liberal society there are likely to be these incentives for non-discrimination – but the discriminators should make the trade-offs, not the Victorian Civil and Administrative Tribunal.