The city of Boise, Idaho, averages 122 days a year when the temperature falls below 32 degrees. It's hard to imagine kicking homeless women and their children out of a shelter under these conditions simply to achieve strict gender segregation (and without any evidence that separating homeless men and women is a good thing). Not to mention that such a plainly discriminatory act would violate the Fair Housing Act (FHA), unless it can somehow be shown to serve a benevolent purpose. Yet last month Bush-appointee Consuelo Callahan voted to show ’em the door – arguing in a dissenting opinion that a Boise homeless shelter should have been allowed to engage in just such a harsh and discriminatory course of action.
For over a decade, the city of Boise had owned and operated a homeless shelter that provided housing to men, women, and children, with no safety problems. In 2005, the city turned over management of the shelter to a religious nonprofit organization, Boise Rescue Mission Ministries (BRM). Following its own policy, BRM immediately took steps to make the facility male-only and forced the female residents and their children to vacate the premises. A group of interested parties, including some of the evicted women, sued the city, alleging that BRM was violating the Fair Housing Act (FHA), which prohibits housing discrimination on the basis of gender. But a federal district court judge refused to grant an injunction which would allow the former female residents of the shelter to move back in. However, Clinton-appointee David R. Thompson and Reagan-appointee A. Wallace Tashima reversed the district court and granted the injunction, forcing BRM to re-admit the residents it had kicked to the curb. Judge Callahan dissented from the judgment.
Judge Callahan and the majority did agree on one point: that under the FHA, intentional discrimination based on gender is unlawful unless the discrimination somehow benefits women, or advances "legitimate safety concerns" that are not "based on stereotypes." BRM argued that its policy met the FHA exception because it was based on "legitimate safety concerns" over keeping men and women at the same facility, and that women would eventually be better off because BRM was planning on creating a separate women-only facility at some point in the future.
The majority balked at these justifications, pointing out that BRM had failed to produce any evidence of safety problems at the shelter in the ten-plus years it was operated on a co-ed basis, or any other data that would show mixing men and women raised genuine safety concerns. The best BRM could do was offer the self-serving testimony of one official who asserted, without any empirical basis, that he "believed" that the "problems [of serving the homeless] are exacerbated in a mixed gender shelter environment." Indeed, not only did the shelter fail to produce reliable evidence to show that excluding women would make the shelter any safer, but in fact, common sense tells us that ousting homeless women and their children onto the street would make them considerably less safe. As to the argument that the harm was just temporary, the majority observed that BRM had no concrete plans to create a shelter just for women. (BRM acknowledged that its plans might turn out to be "infeasible.") The majority also held that even if the harm caused by forcing women and their families out onto the street was only temporary, it was extremely serious, and could not be justified since the reason for setting up separate facilities – gender segregation – completely lacked any basis.
Judge Callahan, on the other hand, would have upheld BRM’s decision: "[S]afety problems inherent in housing homeless men with homeless women" were sufficient to justify discrimination -- even though these "inherent" problems lacked any sound justification on the record. Last time we checked, Judge Callahan was a federal judge, not a social scientist, so she should probably avoid unsubstantiated pronouncements on how best to care for the homeless. She also said that because BRM was considering opening a shelter for women and children sometime in the future, the harm done to the residents kicked out of the city-owned shelter was probably a temporary hardship. But gee that’s some hardship – kicking the women and children onto the street. And for what? There was no good evidence that separating men and women does any good to begin with. Plus there’s no guarantee BRM will ever build them their own shelter.
So Judge Callahan would allow Boise's homeless women and children to be booted out of a city-owned shelter in order to satisfy the unsupported preference of a private group for single-sex environments. Hey kids, buck up. Winter may be fast approaching, but Judge Callahan says this is for your own good. At least we can be thankful that the president has not yet been able to pack the Ninth Circuit with his ultra-conservative judges. On a court stacked with Bush nominees, the chances would have been pretty good that there would have been a second Bush judge on the panel to put Judge Callahan in the majority.
Community House v. City of Boise, No. 05-36195, slip op. (Nov. 2, 2006).