Since the opening of Wonder Woman, the Internet has erupted into a debate about all-female screenings of the superhero flick.  The debate involves who is more sexist:  the movie theaters and female moviegoers excluding those who identify as men (even as employees), or the men complaining about a small number of showings intended to celebrate a milestone in women’s representation in film.  Even the film’s director, Patti Jenkins, has mixed feelings about the all-female screenings.  Because it’s Friday, and because I am going to see Wonder Woman this weekend, I thought I would lasso up a discussion about the cultural and legal dynamics of this case.

My view is that these screenings likely violate public accommodations laws.  Further, the First Amendment likely won’t prevent the operation of those anti-discrimination laws, unless courts deem these screenings sufficiently selective and expressive.

Proponents of the all-female screenings of Wonder Woman assert that women have been excluded from geek culture for decades and are grossly underrepresented as box office stars.  Women wanted a place to celebrate their achievements, for a few small (but wildly successful) screenings after the film had already debuted.  Opponents of the idea claim that these all-female screenings are exclusionary and benefit from a gender double standard.  After all, men would not be permitted to bro out without female scrutiny or criticism at a male-only Thor screening.  My own view is that these all-female screenings are a bit embarrassingly counterproductive.  To me, the benefit of having a female superhero is the statement that woman can be just as brave, tough, strong, and heroic as men.  Requiring half of the population to evaporate itself so as to not disrupt a woman’s experience (as if all men are threatening or sexist) seems contrary to that spirit of bravery and equality.  Plus, I would rather not give sexists reason to believe that women actually want special treatment, not equal treatment.  That said, reasonable minds can differ on this cultural question.

As a legal question, this issue gets even more interesting.  Several complaints have been filed in Austin with the city’s Equal Employment & Fair Housing Office, which enforces state and federal civil rights laws, based on the theater’s discrimination against male customers and male employees.  Alt-right writer Jack Posobiec filed a complaint with the New York Human Rights Commission, against all-female screenings there.  His complaint was also filed against Carson Daly, who championed the events.  The complaints against the movie theaters are based on public accommodations laws, which prevent places of public accommodation from discriminating in the provision of goods and services on the basis of characteristics such as race, gender, religion, and often sexual orientation.  The complaint against Carson Daly will not be availing because of Daly’s First Amendment rights, unless his speech is deemed unprotected incitement – which it isn’t.

Albany Law Professor Stephen Clark, who specializes in sexual orientation and employment law and filed one of the complaints, noted that public accommodations laws would be violated by an LGBT-only showing of Brokeback Mountain, or by gay clubs excluding bachelorette parties.  Because these public accommodations laws are written broadly, Clark is likely correct that movie theaters cannot exclude men, even for select showings.  Intended to prevent discrimination against historically marginalized groups, these laws are written to broadly preclude discrimination against anyone on the basis of certain, often immutable characteristics.  This is perhaps as it should be – I find it fairly insincere to describe a female-only night as fostering inclusion, even if it does ultimately bring more gender diversity into the comic-book world.

There are cases where women-only economic activities are permitted.  For example, Pennsylvania allows women-only gyms, based on a privacy exception to its public accommodations law.   But courts have even held that giving women discounts at bars or restaurants violates public accommodations laws.

Professor Clark, a gay man, argues that equality means that sometimes people need to forego “trait-only spaces.”  However, these trait-only spaces are permitted so long as they are protected by the First Amendment’s freedom of speech or association.  A girls’ night out among friends is therefore constitutionally protected, as would be a guys’ night in someone’s home.   The Supreme Court held that the Boy Scouts are allowed to exclude gay scout masters, on the basis that constitutional freedom of association trumps New Jersey’s anti-discrimination laws.  (The Boy Scouts no longer discriminate against openly gay scout masters anyway.) A federal court in Tennessee held that reality television shows have a First Amendment right to limit the number of minority cast members.

The First Amendment right to expressive association protects the expressive benefits of groups filled with like-minded people.  However, movie theaters (like the social organization Jaycees, which did not have a First Amendment right to exclude women) likely participate too much in the economy, and do not have a sufficiently selective membership or a sufficiently expressive message, to qualify for a First Amendment defense to public accommodations laws.  The Supreme Court held in Roberts v. Jaycees that a social, civic organization cannot exclude women because its expressive association claim was too weak.  The Jaycees are not a small, select group, and admitting women would not compromise the shared goals of members.  Plus, according to the Court, the public accommodations laws do not target speech but instead address the compelling issue of discrimination.

The movie theaters could argue that their all-female screenings foster a clear, more expressive message of female-empowerment, in an attempt to distinguish Roberts v. Jaycees.  Although this message makes a stronger case for protected expressive association than the Jaycees’ need to exclude women, a court might be on better legal footing to hold that the message of female empowerment does not require exclusion of males.  These expressive association questions can get thorny and subjective, with principled line-drawing (necessary to the operation of rule of law principles) becoming difficult.  Currently, the Supreme Court is considering whether to take a case involving a Christian baker who violated Colorado public accommodations laws by refusing to make a custom-made cake for a same-sex wedding.  The Colorado court of appeals ruled that the baker does not have a free speech right to deny creating a custom-made cake to the gay couple.  In many ways, the baker, a single man who designs artistic cakes, has a stronger First Amendment claim than a large movie theater chain.

Interestingly, Professor Clark claimed he filed his complaint only after the originator of the female-only screenings, Alamo Dratfhouse, wrote snarky and rude replies to men who offered legitimate complaints about male-free evenings.  This exemplifies the advice I learned in law school: that many law suits are independent of the merits of a case, inspired by ill will between parties, or due to failures to apologize or behave decently.