Today, Seventh State is pleased to present “Sex Discrimination at MCDCC” by Edward Kimmel, the first of a short series of posts on the Montgomery County Democratic Central Committee’s (MCDCC) decision to switch to separate elections for male and female members of the committee.

Democrats who read all the way down to the bottom of the ballot in June, 2018 will discover  that the Montgomery County Democratic Central Committee has divided itself into “male candidates” and “female candidates.   Most will think nothing of the fact that Homer cannot run against Marge.  But I believe that this is a huge step backwards in the quest to end sex discrimination.

I protested this in a piece on Facebook.  There, I warned that such blatant, de jure discrimination that would be enforced by the  Board of Elections (obviously, an agency of the State of Maryland) was almost certainly illegal.   I took down once I saw a Fourth Circuit opinion that upheld Maryland’s rule that half of the national convention delegates must be male and half female.   Although that opinion found that the Fourteenth Amendments restrictions against sex discrimination must be balanced against the amount of the imposition upon the First Amendment’s protection of free association, the fact that a voter who wanted to vote for only one gender of delegates suffered little because the voter’s principle decision was to vote for one candidate or another.  That tipped the balance in favor of keeping its hands off of the party’s delegate-gender rules.

I was hugely disappointed to find that political parties are, generally, beyond the reach of heightened scrutiny of governmental sorting of the sexes.  Anti-discrimination laws that would prohibit golf clubs from obtaining tax exemptions if they have too many “men only” golf tournaments would likely not prevent MCDCC “men only” elections for seats on the “government” of the Democratic Party of Montgomery County.

So I gave up trying to warn them that what they are doing is illegal.  Courts might well strike down their system – there are no controlling opinions on elections that absolutely forbid elections that pit men against women – but I was shocked to find that generally, courts that will allow girls to play on the boy’s football team are reluctant to declare that competition between male politicians and female candidates may be made illegal.

That shifts the debate to “why?”   Why does the Democratic Party of Montgomery County want to ban inter-gender competition in 2018?

They say that this is their attempt to comply with the Democratic National Committee’s  “Equal Division Rule” that requires that governing bodies of Democratic state and local parties have equal numbers of male and female members.   For years, they have been achieving “gender balance” on MCDCC by waiting until after the election and then adding some extra members of the gender that lost.  As if to prove that the entire notion of second guessing the voters by diluting their choice with some appointed members, sometimes this has required them to add men and sometimes they have had to add women to achieve “gender balance.”

Not many comments on my now-deleted thread attempted to defend the policy.  Some said that compliance with the DNC’s Equal Division Rule was mandatory so that debate was nugatory.  Some said that under the system of appointing new members of the MCDCC to bring the committee into balance, the number of members had swelled from the statutory 24 members to more than 30, a situation that will be corrected if men who resigned are only replaced by men and women with women – without addressing why they couldn’t do that before.

But mostly, they reacted with rage, ad hominem attacks and outright defamation.  An officer of a state-wide Democratic organization said he was disappointed with me for suggesting that “separate is inherently not equal.”  He said that as an attorney, I “knew” that the Supreme Court was stating that segregated schools could not be equal because the minority schools were dingy and not maintained at the same level as majority schools were and that this was inapplicable here because male members and female members would serve in the same quarters.

I beg to differ.

I believe that what SCOTUS was saying was that the act of categorizing along discriminatory lines is what makes them unequal.   Drawing a line between black students and white students was what placed the stigma.  Asserting that there is a reason to sort blacks from whites is, by itself, illegal discrimination.

And so it is with gender.  Pretending that there is something about ovaries or testicles that causes a person to make better/worse/different policy decisions is, itself, a slanderous statement.

Finally, I don’t believe that it is women who will have seats preserved on any Democratic body this year.  Although, as the courts have noted without presentation of evidence, the population at-large may be presumed to be about equally split between males and females, I don’t think that is true of Democrats and especially not of active, working Democratic activists.   My view may have been skewed by the fact that I have been among the most active Hillary Clinton supporters over the past ten years, but the events I have been to have been dominated by women.   Saying that the voters will not be allowed to elect seventy or eighty percent female leaders of our party may well be what keeps a certain amount of men at the table.

It is time to allow Democratic voters to decide who they want to lead them.