Let's not forget who is discriminating and who is discriminated against

One thing that continues to frustrate me about the pharmacy refusal debates is that all the attention is paid to the rights of pharmacists to religious freedom, and none is paid to the rights of their customers that are being violated. I think in part this is because almost all those refusing service are men and almost all those being refused are women (or gay men, in some cases). And we as a society tend to think first of the rights of men over women. But we're letting the wingnuts frame this argument---by making it about the religious rights of the refusers, we are letting them subtly imply that women are not citizens with full rights worth equal protection by the government. In my latest column at RH Reality Check, I argue that when a pharmacist refuses to serve a female customer because he believes she is sexually active in a way that goes against his religion, he is discriminating her on two counts that are arguably illegal:

1) Discrimination against customers based on gender and

2) Discrimination against customers based on religious affiliation. The pharmacist is not the only person with a religious belief. As I argue in my piece, what happens in a refusal interaction is the pharmacist gains information that the customer has a religious belief he disapproves of (one that allows for the use of contraception) and he refuses service based on that religious belief.

I don't know where pharmacies stand as "interstate commerce" businesses that are controlled by the Civil Rights Act that would express forbid them from discriminating on the basis of gender and religion, but Scott points out that since pharmacists already can't work without a state license, so I'm guessing the answer is a big, fat yes. Refusing to offer full services to certain customers because of gender and religious beliefs reminds me mostly of segregated bathrooms from the pre-CRA days. Black customers were allowed to use the restaurants and restrooms, but were relegated to second rate service. Segregated bathrooms were banned under the CRA, and I think that segregated service levels at the pharmacy counter should also qualify.

Sexists hope that hiding behind religion will confuse the issue, and sadly they're right that Americans have short memories and are easily confused. But let me remind you: Segregation was defended using the religion card. A great many white people claimed to sincerely believe that the Bible required that the races be separated, a belief that was even in the decision of the judge that sent the Lovings to jail for interracial marriage, resulting in a lawsuit that ended up overturning bans on interracial marriage. We would not accept a hotel manager who felt that his hotel was exempt from the CRA because his religious freedom means that he can impose his will on black customers and refuse to put them in any rooms but broken-down shacks in the back. Nor should we accept a pharmacist who does the equivalent with his female customers.

Unfortunately, gender discrimination is a hard argument to win in court, though it shouldn't be since the laws regarding gender are pretty much the same as the ones regarding race. It's too bad, too, because if feminists had gotten their way and court decisions like Roe were determined on the basis of equal protection instead of privacy arguments, then it would probably be easier to argue that refusing a certain percentage of women's medications while allowing men access to all they wish to purchase is a matter of discrimination.

By the way, I'm still fuming at how Lord Saletan pooh-poohed the idea that being denied your birth control in a pharmacy is a humiliating experience. Saletan will never have complete strangers sum him up upon their first meeting with him and dismiss him as a slut. But a slut is exactly what a pharmacist is calling a woman who he refuses birth control to. I don't know if Saletan has daughters, but I'm going to guess if he did, he wouldn't think that it's no big deal to have perfect strangers mistreat them and call them sluts.