McSorley’s Path to Gender Equality

Happy St. Patrick’s Day! On my way to the gym – yes, you read that right – this morning, I passed by one of the East Village’s most prominent watering holes: McSorley’s Old Ale House. Though it was only about 8:30 am, the crowds of green-adorned men and women were gathering for what appeared to be quite a party.

Surprisingly, until relatively recently (namely, 1970) McSorley’s didn’t allow women insideThat all changed with Seidenberg v. McSorley’s Old Ale House, decided on June 25, 1970. In that case, plaintiffs – “[t]wo determined ladies, both board members of the National Organization for Women” – sued under 42 U.S.C. § 1983, “challenging defendant’s 115-year practice of catering to men only.”

The court held that defendant’s refusal to serve women constituted a denial of rights secured by the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, and hence granted summary judgment to plaintiffs. From the opinion:

[N]o difference between men and women, as potential customers of the defendant, has been offered as a rational basis for serving the one and not the other. It may be argued that the occasional preference of men for a haven to which they may retreat from the watchful eye of wives or womanhood in general to have a drink or pass a few hours in their own company, is justification enough; that the simple fact that women are not men justifies defendant’s practice. The answer is that McSorleys’ is a public place, not a private club, and that the preferences of certain of its patrons are no justification under the Equal Protection Clause. Such preferences, no matter how widely shared by defendant’s male clientele, bear no rational relation to the suitability of women as customers of McSorleys’.

It concluded by eschewing Shakespeare’s statement that “Frailty, thy name is woman”, and noting that “[o]utdated images of bars as dens of coarseness and iniquity and of women as peculiarly delicate and impressionable creatures in need of protection from the rough and tumble of unvarnished humanity will no longer justify sexual separatism.”

Likewise, the New York City Human Rights Law, namely New York Administrative Code § 8-107(4)(a), prohibits discrimination on the basis of sex (among other characteristics) in places of public accommodation.

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