This Article focuses on two normalized practices that violate federal and state anti-discrimination laws yet have been undertheorized in the public accommodations context: dress codes and gender-based pricing in bars, restaurants, and nightclubs. This inattention exists despite media accounts, case law, and empirical data that demonstrate that discrimination based on race and sex thrives in these spaces. Tragically, public accommodations receive less attention within the civil rights race and gender agenda today. These sites were also important for the Women’s Rights Movement, which challenged sexist norms that prohibited their service in bars and restaurants if they were unaccompanied by men. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming pools, movie theaters, and lunch counters. Public accommodations are private and public facilities that are held out to and used by the public.

A special thanks to Olivia Bethea and Fatoumata Waggeh for their research assistance as well as Hannah Pugh and Bridget Lavender for their editorial guidance. This paper benefitted from feedback and conversations with Regina Austin, Monica Bell, Guy-Uriel Charles, Jessica Clarke, Charlton Copeland, Deborah Dinner, Brittney Farr, Jill Fisch, Thomas Frampton, Trevor Gardner, Jean Galbraith, Sally Gordon, Jasmine Harris, Tanya Hernandez, Dave Hoffman, Osamudia James, Jasmine Johnson, Olati Johnson, Jonathan Klick, Seth Kriemer, Benjamin Levin, Sophia Lee, Tim Lovelace, Reuben Buford May, Serena Mayeri, Jonathan Masur, Darrell Miller, Melissa Murray, Julian Nyarko, Elizabeth Pollman, Christopher Schmidt, Elizabeth Sepper, Fred Smith, Henry Bluestone Smith, Brian Soucek, Ted Ruger, Kendall Thomas, Andrea Wang, Tess Wilkinson-Ryan, Jamillah Bowman Williams, Tobias Barrington Wolff and members of the Department of African American Studies at UC Berkeley. *Presidential Assistant Professor of Law, University of Pennsylvania Law School.

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