Trouble That Rhymes With Pool
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Trouble That Rhymes With Pool

In a tricky church-state case, city investigates chasidic single-sex swimming in Williamsburg.

Associate Editor

As human rights violations go, this dispute was settled quicker than most — at least for now.

One day was all it took for City Hall to respond to Jewish protests and rescind an order in late May to end women-only swimming hours at a public pool in Williamsburg. The accommodation for women’s-only swimming, 90 minutes on three weekday mornings and another 90 minutes Sunday afternoon, was requested in the 1990s by the predominantly Samar neighborhood, and approved without anyone’s objection then or since. Then last month an anonymous citizen complained to the city’s Human Right Commission.

Although Assemblyman Dov Hikind, who represents Borough Park, hailed the city’s restoration of women’s hours as a “major victory for human rights,” and he thanked Mayor de Blasio for his help, a person at the Human Rights Commission, who asked not to be identified, advised us that the story is far from over. The pool’s status quo was restored, he said, but only while lawyers evaluate the alleged violations at the pool “to ensure that its policy is compliant with New York City Human Rights law.” Title 47 of the city’s Administrative Code allows for single-sex showers and changing rooms at a pool but “this exemption shall not apply to… facilities for swimming.”

An ongoing issue for the chasidic community, said one Satmar rabbi, is what he saw as the selective enforcement of codes that seemed to specifically target chasidim, including those covering the water used in shumrah matzah bakeries to codes for how blood is handled at chasidic circumcisions.

The Metropolitan Pool and Recreation Center, built in 1922, an old brick building at 261 Bedford Ave., near the home of the Satmar rebbe, offers women-only hours three days a week at 9:15 a.m. and Sunday afternoons at 2:45, for girls who would be in school during the mornings. Chasidic women require gender-separate hours because their understanding of Jewish modesty laws oblige them to not be seen by men when the women are wearing swimsuits. After the women leave the indoor pool, the building, whose stone façade indicates its original purpose as a “Public Bath,” is then used for mixed-gender swimming until closing.

Hikind told The Jewish Week that he couldn’t understand what the problem was: “It’s preposterous that the city could even consider this to be ‘discriminatory.’ Any woman, regardless of race or religion, is more than welcome to take advantage of the pool. We’re so busy worrying about everybody’s rights, except the rights of these women.”

Hikind said he was told by the women that when they left the pool in the morning they “never saw anyone waiting to use the facility after they left.” However, WPIX reported others in the neighborhood who said the pool should be “co-ed all the way.” Another told WPIX that sometimes the pool has “more preference for the Jewish women than for [other] ladies and kids. That shouldn’t be like that.”

In 2011, in a move seen by some in the Orthodox community to end the Metropolitan Pool’s appeal to chasidic women, the Parks Department transferred the morning lifeguard — a woman — to another facility, replacing her with a male lifeguard. Of course, the presence of a male lifeguard made the facility uncomfortable for chasidic women. The lifeguard switch was rescinded after chasidic protest, with the chasidic women even garnering support from the Becket Fund, a Washington, D.C., legal group specializing in the First Amendment and religious liberty.

In 2013, Liam Kavanagh, first deputy commissioner for parks and recreation, told The New York Times that providing a female lifeguard for the pool “would run against the Establishment Clause [by] providing a service on the basis of a religious belief.” Then when the female lifeguard returned there were no complaints about the Establishment Clause. The Becket Fund’s website said that there was a unanimous Supreme Court precedent “holding that government accommodations of private religious practices does not violate the Establishment Clause. The bad legal advice [New York] City officials are apparently getting, when combined with the growing Orthodox population in the City, practically guarantees further litigation over religious liberty for Orthodox Jews.”

Public swimming pool. Wikimedia Commons

Eric Rassbach, deputy general consul for Becket, said on the group’s website that Becket was concerned about New York’s “regulatory excess” regarding religion. In Williamsburg alone, he cited city lawsuits, since dismissed, against seven Satmar stores that had signs requesting that modest clothing to be worn, requests similar to dress codes in non-Jewish restaurants; city attempts to regulate via informed consent forms the “metzitzah b’peh” circumcision practice (which city and national health officials believe led to the deaths of two infants who contracted herpes from mohels), regulations later relaxed by Mayor de Blasio; and then the lifeguard pool dispute. City inspectors also questioned the water purity at Satmar shmurah matzah bakeries that traditionally used water from wells rather than reservoirs. (The city did find small levels of nitrates in the water but said the threat was minimal.)

Marc Stern, general counsel for the American Jewish Committee (which has not taken a position on the recent pool case), noted that several Western countries have seen clashes between religious freedoms and a modern understanding of women’s equality. He cited a news item from Switzerland where a school exempted two Muslim boys from the Swiss custom of shaking their teacher’s hand (a woman’s hand) at the end of the school day, causing “a storm of controversy across the European state,” reported the Washington Post. “We cannot accept this in the name of religious freedom,” said the Swiss justice minister.
Stern also cited the French banning women’s hijabs. There have been numerous feminist requests for women-only situations, but religiously inspired requests, such as the pool case, said Stern, “are considered anathema to modern conceptions, and they [progressives] are not prepared to tolerate people dissenting from those views.”

A recent New York Times’ editorial about the pool, called the women’s-only accommodation “unfortunate.” The case had the “strong odor of religious intrusion into a secular space…”

Stern said the Times “does not give any weight to religious liberty,” and that the editorial seems “a little bit out of proportion. The law has been ambivalent about whether there’s a right to decide who can see your body when not fully clothed. This relates to the fight over transgender kids in bathrooms, or whether a hospital can abide by a woman patient’s request to only have a woman nurse,” a request seen as a violation the nurse’s job equality. The pool case, said Stern, is “another one of those clashes between avant-garde theories of [gender] equality and more traditional views of modesty.”

To those who suggest Satmar build their own pools if they want women’s hours, Stern pointed out, “If you read these statutes literally, there’s no place where the Satmar can have pools unless they are under very stringent conditions of private ownership,” such as existing without advertising or anything implying public use. As in the cases of Christian bakers or florists who face court-imposed punishments if they decline to work gay weddings for religious reasons, “The current liberal doctrine is religious accommodation is not acceptable,” said Stern, “when it touches on equal rights [or if it] adversely affects anybody else. Private religious practices are very contested now, when religious practice runs up against civil rights laws.”

(Former Mayor Michael Bloomberg, in arguing for informed consent forms notifying parents that the metzitzah b’peh practice is potentially dangerous, said that people’s religious freedom should not extend so far that they infringe upon the health of vulnerable infants.)

Ian Smith, staff attorney of the Washington-based Americans United for Separation of Church and State, e-mailed, “City government cannot be in the business of enforcing religious laws, but it can offer accommodations to religious constituents. The accommodation [such as an] early morning swim period, women only but no restrictions based on religion — looks OK, but if the city decides that it doesn’t want to make that accommodation it does not have to do so.” Even if that accommodation is constitutional from a church-state perspective, wrote Smith, the Human Rights Commission “may be working off of different legal requirements, such as a statutory limitation on sex-segregations. That might mean the HRC will still shut down the women-only swim times.”

Becket’s Rassbach, writing in 2011, speculated that “the future of Judaism in New York City increasingly appears to be Orthodox” and a “fear of this coming demographic change” might be driving efforts “to use the power of government to suppress” chasidim. (De Blasio’s move to rescind the Bloomberg administration’s informed consent for metzitzah b’peh, for instance, would seem to suggest otherwise.)

Sometimes it is other Jews who are feeling that fear. Regarding an eruv dispute in the Hamptons, the Times reported that eruv opponents included secular Jews who were concerned that in other towns that allowed an eruv “the populations of Orthodox Jews grew, stores closed on Saturdays and conflicts over public schools arose.”

Yair Rosenberg, reporting for Tablet, noted that Muslem women have been the recipient of private swimming hours elsewhere in the United States, to no legal objection. In 2013, pool hours for Muslim women, ages 5-17, was established at a government-funded YMCA in St. Paul, Minnesota, in partnership with the St. Paul Police Department. Minnesota's Star-Tribune, the state's largest paper explained, “Special considerations have to be made to address modesty concerns so that the Muslim girls can swim and not reveal too much of themselves. During the hourlong swim practice, all other swimmers are cleared out of the pool. The men’s locker room is locked. Female life guards are brought in… The police department helps provide transportation for the girls to the YMCA.”
Rosenberg adds, “Muslim women have been receiving such accommodations for years, not just in Minnesota, but everywhere from San Diego to Seattle. And that’s just at public or publicly-funded facilities. Private institutions like Harvard, Princeton, and George Washington University… not typically understood as bastions of illiberal theocracy—have also established separate swim or gym hours for Muslim women.” The New York Times never took issue with women’s-only times for Muslims until New York City decided that the same courtesy for chasidic women violated the codes of the Human Rights Commission.

Hikind told The Jewish Week, “The issue for me is a very simple one. We live in a city where being ‘progressive’ is a very big deal, understanding and respecting the cultural differences that communities have. That’s what being a liberal is all about. Here we have a situation where these women could enjoy separate swimming. And the city has to take this away? Why make a Human Rights violation out of Orthodox women swimming? Is this hurting anybody?”

jonathan@jewishweek.org

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