Law vs. Leisure: Nightlife and the Limits of Anti-Discrimination Law
Bars, nightclubs, and similar entertainment venues have been important to American socio-political developments. Saloons were an important site of critique for a women’s-led temperance movement that helped facilitate new kinds of political organizing and the passage of the Nineteenth Amendment. The 1969 Stonewall Rebellion took place at a gay tavern and is considered to be one of the most important moments in the struggle for LGBTQ rights. Throughout the twentieth century, nightclubs, cabarets, and juke joints helped generate innovations that were central to black cultural politics and production, and in turn, American popular culture. Contemporarily, bars and clubs are cultural spaces that allow for various kinds of sociality as well as personal and group expression. Legally, these institutions fall within the ambit of “public accommodations” under various anti-discrimination laws.
While historians and social scientists have chronicled the ways marginalized groups have fought for inclusion in these spaces, legal scholars have not given robust attention to the fact of discrimination in nightlife. This paper blends scholarship in law, sociology and cultural studies to focus on two nightlife practices that have been normalized: dress codes and gender-based pricing. On the former, I discuss how the under-regulated event of admission allows nightlife bureaucrats to prohibit styles that exclude racial minorities and non-gender conforming individuals. I then describe how gender-based pricing reifies sex-stereotyping, subjects sexual minorities to administrative violence, and is also ripe for misuse. I conclude with a discussion on how these practices subtly and explicitly reinforce racial, gender, and sexual norms.
Shaun Ossei-Owusu is a Presidential Assistant Professor of Law at the University of Pennsylvania Law School.