Memorial Day marks opening weekend for many public pools across the U.S., and as warm weather draws people to cool waters, a handful of cities are caught in a debate over gender-specific swimming hours.
These swimming times, which are most often women-only, are usually created for Jewish or Muslim communities whose religious beliefs mandate a modesty that includes covering most of their body in front of the opposite sex. Critics find these hours discriminatory and reinforcing of old stereotypes, yet in recent years they have withstood challenges in some cities, while succumbing in others. And as the law moves towards perceiving gender as more fluid, these challenges are likely to get more heated. A recent decision by a federal court appeals court may signal that the end is drawing nigh for gender-segregated swimming.
The United State Court of Appeals for New Jersey ruled in April that a condominium association in Lakewood, New Jersey, could no longer offer single-sex swimming hours because they discriminated against women in violation of the Fair Housing Act. The condo association had created separate swimming times to serve the large population of Orthodox Jewish residents. But particularly galling to some, including the appeals judges and the American Civil Liberties Union, were the limited hours for women to swim in the evenings, based on the reasoning that women could swim during the day because they didn’t work.
“The association’s pool policy not only impermissibly segregated swimming time by gender, but it doubled down on that discrimination by allotting swimming hours based on stereotypes about the roles men and women play in the home and the workplace,” said Sandra Park, a senior staff attorney for the ACLU’s Women’s Right Project, which had joined the lawsuit brought by non-Orthodox residents. “This type of discrimination has no place in housing or anywhere else.”
While this was a private pool, city pools are also facing debates about mixed-gender swimming, a centuries-old concern, according to Jeff Wiltse’s book, Contested Waters, a history of public pools. “Since their origin in the nineteenth century, sexuality and concerns about sexuality have profoundly shaped the use and regulation of municipal pools,” he writes. Today, pools in New York, Philadelphia, and Seattle have faced recent challenges over women-only pool hours.
Wiltse notes that the first public pool facility was opened in 1868 on Cabot Street in Boston with two pools that could accommodate as many as 40 people: one pool for males and one for females. It’s difficult to imagine with the mandatory pre-swim showers at most municipal pools now, but these pools were mainly for washing. “Bathers plunged their dirty bodies into the water and rubbed their skin clean,” Wiltse writes. “Because of frequent emptying and refilling, the pools required over 2.7 million gallons of water during their first two months of operation.”
The pools closed after eight years. While they had been envisioned as a way to clean grimy working-class men to prevent disease from spreading in poor crowded neighborhoods, they were being used primarily as play spaces for working-class children. It seemed that the city of Boston was unwilling to fund this.
In these early days, Wiltse reports that blacks and whites bathed together. This ended in the early 1900s, when men and women began to swim together. Racial segregation became the norm, based on fears that partially clothed white women would be subject to reckless eyeballing by black men. When racial segregation was challenged and public pools were integrated in the mid-20th century, gender segregation returned to an extent.
Into the summer of 2018, two pools in Philadelphia retained that mid-20th century gender segregation with women-only hours that had been in place for some 50 years, according to the city’s park’s commissioner. Then, on the afternoon of June 26, 2018, a Philadelphia resident, Dena Driscoll, tweeted at the city’s park and recreation department. Driscoll asked “Can you explain your gendered pool rules to me? Why do some of your pools gender on certain days? What about those who don’t identify with a gender or are trans?” By 1 p.m. the next day, Philadelphia’s parks and recreation department announced that as of the following Monday, the gender-specific swimming hours at the two remaining pools that had them would be eliminated.
“It is something, believe it or not, that had been sort of a tradition for about 50 years, maybe even further back, from what we can tell,” Philadelphia Parks and Recreation Commissioner Kathryn Ott Lovell told local radio station KYW. “Realizing that it was no longer appropriate, we then created a policy quickly to say we don’t need and shouldn’t have gender-specific swim hours at our pools.”
No such luck for the complainant who wrote to the New York City Commission on Human Rights in 2016 about women-only hours at two indoor pools in neighborhoods with a large population of Hasidic Jews. The parks department took steps to do away with them but, it appears, backed down in the face of opposition.
Gothamist reported that Dov Hikind, then a Brooklyn Assemblyman representing a district with a large Hasidic community, said the women needed to be able to swim because they didn’t have much else: “These women don’t have a television at home. A lot of other sources of entertainment we enjoy, they don’t have. Today the more [skin] you show the more you get, but for these people the modesty is important."
Alicia McCauley, spokesperson for the Commission on Human Rights, told CityLab the exemption for just two public pools had been granted “based on Orthodox women not being allowed to swim with men,” and, “that anyone who identifies as female can attend.” The city has been offering these hours for 20 years, McCauley said. When the decision was handed down in 2016, it drew more, non-anonymous complaints, including from one from The New York Times, which published an editorial decrying these gender-specific hours. Some Jewish publications called foul, pointing to positive coverage in the New York Times about gender-specific hours in Muslim communities.
But gender-segregated hours for Muslim communities in many U.S. cities do also draw challenges. A pool in Tukwila, Washington, just outside Seattle, drew a complaint to the Washington state Human Rights Commission in 2013. The commission upheld the city’s right to offer single-sex swims as long as they offered equal hours to men. At the hearing, The Seattle Times reported that a number of women dressed in hijabs testified in defense of the single-sex swims, with one saying: “This isn’t just something I’m doing. It’s a commandment from God; men and women are not to mix together. That’s my religious belief.”
And in Seattle, some pools have women-only swims, including one at Meadowbrook Pool called “Ladies Night.” In 2013, when the city announced the women-only hours, it expected that these swimming times would primarily serve Muslim women, but that Orthodox Jews and other women would participate. Seattle pools had women-only swims for about a decade before that, but during that time, it was paid for by private funding.
This workaround to use private funding has also been used in New York City. Last year, Brooklyn councilman Chaim Deutsch solicited donations to rent a private beach in New York City for two days so he could provide single-sex beach access for Jewish and Muslim constituents. He noted that Muslims and Jews share many of the same modesty laws. (Swimsuit makers for Orthodox women design burkini-rivaling modesty swimsuits with matching head coverings.)
“I have a lot of Orthodox Jewish and Muslim constituents in my district who have never been able to go to the beach before,” Deutsch told the New York Post. “They’ve never been able to smell the beach, to walk in the sand. Everyone should be able to enjoy the beach.” His deputy chief of staff told CityLab in an email that it was a “great success” and he plans to do it again this year.
It may be that these private, single-sex outings will become the norm. As transgender, non-binary, and intersex people demand their rights, it’s likely that New York and other cities that offer gender-restricted swims at public facilities will face more pushback. In Seattle, someone recently tested the boundaries of the Washington Human Rights Commission’s ruling on transgender access in a women’s locker room at a public pool.
In 2016, when asked about transgender people and the restricted swims at public pools, New York City Mayor Bill de Blasio didn’t have an answer. This week, Human Rights Commission spokesperson Alicia McCauley told CityLab that “anyone who identifies as female can attend” women-only swim hours.
As Wiltse’s book recounted, as long as it is hot, and as long as people live in cities, pools will be one of the first test sites for changing mores.