By Matt Kaufman, Rakeback.com Poker News Editor
I’ve noticed an alarming number of people on Twitter and in poker forums making comments that the WSOP (qualify soon or it’ll be too late!) should be able to ban men from the Ladies Event.
I find comments like this to be very shortsighted, but perhaps many people are just ignorant of the actual reasons why a pure “Ladies ONLY” event can’t exist.
PLEASE take note – despite my very strong belief that men should not be officially excluded from the Ladies Event, this does not mean I believe they SHOULD participate. Frankly, I think the men who exercise their right to play are extremely immature (one might even say “douchebags”). I simply think that their right to play has to exist. Additionally, I’m not an attorney so this could be slightly off at some points, but the major points are accurate.
In the United States, a large number of our laws are based on the concept that all people here are created equal. That’s nice and all, but let’s get real – we’re not equal. People are different genders, races, religions, ages, etc.
Society, and in turn the legal system, has been forced to recognize the differences between people. So how do we determine when those differences are significant enough for people to be legally treated differently?
The Equal Protection Clause of the Fourteenth Amendment says that states can’t “deny to any person within its jurisdiction the equal protection of the laws.” This, however, is a bit too vague to apply to many situations.
Through plenty of well-known court cases, the Supreme Court has decided that laws and rules which discriminate must be examined in court based on the manner in which they categorize people. Each type of categorization dictates a “level of scrutiny” that the law/rule must pass.
At the lowest level is “rational basis scrutiny”. Some examples of discrimination that would pass the rational basis review are that you can prevent ex-felons from coaching Little League baseball, and you can choose not to hire elderly people for jobs which require physical labor. Basically, you CAN discriminate between categories of people as long as a rational individual could look at the discrimination and understand that it’s justified for a specific reason.
At the top level (I’m skipping the middle for now) is “strict scrutiny”. Laws/rules that discriminate based on race or national origin must pass the “strict scrutiny” level of review in order to be legal – this almost never happens. The most famous example of government action passing the strict scrutiny test was in Korematsu v. United States, where the Supreme Court decided that the government had the legal right to send Japanese Americans to internment camps during WWII. You quite literally need a “compelling governmental interest” at play to legally discriminate based on race.
The middle level is “intermediate scrutiny”, which deals with laws/rules which classify individuals based on their gender (and sometimes sexual preference). For a law or policy to pass intermediate scrutiny review, you need to be able to show a substantial difference between the genders as it applies to the purpose of the law/policy. A simple explanation which might work to justify the existence of a law which discriminates based on age is not good enough to discriminate based on gender – you need a compelling reason for the discrimination.
The existence of intermediate scrutiny in this country is of incredible importance to women’s rights. It’s the precise reason that employment opportunities are equal (in theory) for men and women. It’s why the Virginia Military Institute can no longer only accept male students. On the flipside, it’s also why bathrooms can be strictly separated by gender – we’ve decided there IS enough difference between men and women when it comes to personal hygiene that we CAN categorize them based on gender in that case.
Hopefully now you understand why the WSOP’s Ladies Event can’t exclude men – such a policy would never in a million years pass the intermediate scrutiny review. For it to pass, the WSOP would need to prove that men and women are sufficiently different from each other when it comes to playing poker. If they could manage to do that, it would be a step BACKWARDS in terms of gender equality in poker – not forwards.
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