Jumping in the deep end

NEW YORK—Jan Peterson has lived in Williamsburg, Brooklyn, since 1963, watching the neighborhood change from a bleak industrial zone, friendly only to immigrants and artists, to one of the wealthiest parts of the borough. Williamsburg now hosts wealthy bohemians sporting Apple watches, and is also home to a large Hasidic Jewish community, an ultraconservative sect of Judaism. In the summer heat the Hasidic women in long skirts and wigs push strollers down the street past long-limbed hipsters in cutoffs.

The city’s Metropolitan Recreation Center, one block down from a new Apple Store, is one Williamsburg spot that has welcomed Hasidic women, who require separate swimming spaces from men. The public pool dating back to 1922 is small and unimpressive, but the Hasidim cherished its women-only swim time, set four times a week for two hours. Only one other city pool has a women’s swim time.

Peterson has swum during the women-only hours for years, though she is not Jewish. She serves on Williamsburg’s community board and knows Hasidic men from the meetings, but the Hasidic women don’t speak there, or anywhere in public. That changes at the pool.

“They’re so talkative. It’s like a social club,” said Peterson. “I love it.”

On a recent day at the pool, Parks Department staff milled around at the entry desk in the lobby checking people in and answering questions, when a Hasidic woman swept in carrying a half-dozen plates covered in foil. She greeted the staff warmly and began distributing the plates of what turned out to be stuffed cabbage.

“They’re my friends!” she explained, before heading to the locker room to change into a modest swimsuit and then joining several other ladies in the pool.

Back in May this haven for the neighborhood women was in jeopardy. A lifeguard mentioned casually that the women-only swim time was ending. One person had anonymously complained about the women’s swim to the city’s Human Rights Commission, an unelected body that investigates and prosecutes violations of the city human rights law. The commission told the city Parks Department that the swim time was illegal.

Women-only swim time seems a minor issue, but it captures the tricky balance of American pluralism—weighing rules for the general public with accommodations for minorities. As American evangelicals feel themselves increasingly a minority, they could learn from the history of conservative Jews in New York, who have learned to operate as a minority in a sometimes hostile city—even concerning matters as small as public pools.

Cities outside of New York have set up similar accommodations for swim times. Seattle public pools have women-only swims, mostly to accommodate the Muslim immigrants there. A number of YMCAs around the country set aside time for women too. Thirteen municipalities in Sweden began offering women-only swim times this spring, partly to accommodate the country’s growing Muslim population and with the support of Sweden’s feminist party.

But it’s plausible that someone might file a lawsuit against such accommodations one day. In New York, community leaders worked vigorously to resolve the pool times without a lawsuit.

After the announcement that swim times were ending in Williamsburg, distraught Hasidic women called the office of New York Assemblyman Dov Hikind, a Democrat and an Orthodox Jew. He represents a Hasidic enclave in Borough Park, about 10 miles from Williamsburg, and he is accustomed to dealing with such matters even outside his neighborhood. Earlier this year Baruch College had scheduled a graduation ceremony on a Friday afternoon, so a Jewish graduate would have had to miss because it bled into Shabbos. He talked to the school, and the school adjusted the time.

Hikind’s Borough Park office is on the second floor of an office building, on a street where all the signs are in Hebrew and strollers abound. (The Hasidim have an impressive birthrate, which is one reason city officials pay attention to them.) Hikind sat in his office sipping from a paper cup of coffee, an illuminated copy of the Torah resting on a table behind his desk. He picked up a printout of an email, which brought up another religious accommodation problem, this time in Crown Heights, Brooklyn: parking on Shabbos.

“At the end of the day New York is very quote, progressive, very liberal, which should make people understand more about accommodating people,” Hikind said.

When Hikind started receiving phone calls about the Williamsburg pool, he and his staff researched what was going on. When Hikind visited the pool, he noticed it was “not exactly one of these fancy schmancy places,” so he laughed that someone was even fighting about hours there. He and his staff called the Parks Department, which confirmed that the swim times would end after the one anonymous complaint to the Human Rights Commission. He decided to go public. He issued a press release, calling for the city to reinstate the swim times.

“Everybody ran for cover,” Hikind said. Parks Department officials told him they weren’t ending the program, they were “looking at it.” Two days later, Hikind said New York Mayor Bill de Blasio came over to Hikind’s house for a meeting on an unrelated topic. They talked for two hours, and Hikind brought up the pool times. According to Hikind, de Blasio didn’t promise anything—the mayor told him the commission was reviewing the case—but Hikind found him “understanding of our side.” Hikind and de Blasio know each other going back to 2000 when de Blasio was managing Hillary Clinton’s campaign for the U.S. Senate. De Blasio faces a potentially tough reelection race next year.

While de Blasio and Hikind were meeting, other liberal forces in the city were sharpening their knives. The New York Civil Liberties Union (NYCLU), an arm of the ACLU, called the pool policy “a regime of gender discrimination.” The New York Times editorial board wrote that the pool was “unmoored from the laws of New York City and the Constitution, and commonly held principles of fairness and equal access” and the policy represented “a capitulation to a theocratic view of government services.”

“God bless them,” Hikind said about the Times. “They did us a favor because [the editorial] was so ridiculous.”

In July, the Human Rights Commission announced it was granting an exemption to the Williamsburg pool, as well as to one other pool with a women’s swim. Other pools can apply for a similar exemption. The city human rights law allows gender exemptions in public accommodations to address religious and cultural concerns.

The exemption has parameters: The commission ordered a reduction of the women’s swim from eight hours a week to four, to limit the imposition on the general public. The women’s swim time is still governed by the city’s transgender laws, allowing anyone who identifies as a woman to use women’s facilities, but so far that hasn’t created any issues. The Parks Department cheered the commission, calling it an “important accommodation to New Yorkers who may feel more secure and comfortable in a single-sex environment.”

Hikind was shocked that the Hasidim won at the commission, and he largely credits de Blasio. After all, this is the same commission that in 2013 filed a lawsuit against several Hasidic businesses in Williamsburg that had posted dress codes for their stores. The businesses argued their dress code was no different than a dress code for a Manhattan club. In 2014 the commission settled with the businesses, declining to fine them but requiring that their signs say everyone is welcome.

“I wish I was in the room—more than one room—listening to the conversation when this was being discussed,” Hikind said of the pool decision. “Because if you were betting on this, you would’ve bet that they would have come down against it.”

Hikind waited for the NYCLU to sue—but nothing happened. He had been prepared, too. The First Liberty Institute, a national religious liberty law firm, and a lawyer from the Jewish Community Relations Council had offered their services to defend the women’s swim in court.

The NYCLU still opposes the commission’s decision, with Executive Director Donna Lieberman saying in a statement to me that it has “the earmarks of unlawful, preferential treatment on the basis of religion.” But Assemblyman Joe Lentol, who represents Williamsburg and supported Hikind’s efforts, said he talks to Lieberman often and she has never brought up the issue with him.

A women-only swim at a public pool doesn’t have clear judicial precedent; Chris Lund, a constitutional lawyer at Wayne State University Law School who specializes in religious liberty, said no cases like this have come before the U.S. Supreme Court or the lower courts. The accommodation seems “reasonable” to him, but he said the constitutionality might be “up in the air.”

“If the government is going to discriminate on gender, they have to have a very good reason,” Lund said. But the details here are interesting, he added, because a lawsuit would argue that men are entitled to the pool “all the time,” with the effect being that some New Yorkers, like Muslim or Jewish women, would not have access to the pool at all: “If you’re concerned about everyone having access to the pool, then this accommodation makes sense.”

Assemblyman Lentol has been in office over 40 years, and he said these issues come up every so often, whether involving a pool or parking. He recalled that his father, who was a state legislator, had a measure passed that allowed Jewish businesses to remain open on Sundays, back when blue laws were in place. “That was very controversial at the time,” he said.

Peterson, a self-described feminist, was pleased the city reinstated the women’s swim but frustrated that the decision went through the Human Rights Commission with no public discussion, vote, or transparency. What was the rationale for reducing the hours? she wondered. The anonymity of the one complainer to the Human Rights Commission drove her crazy. A community board exists to hear these kinds of issues, she pointed out. Anyone can air his complaints there.

The feminist Peterson and the conservative Jew Hikind agree on one thing: Don’t go to courts first. Peterson recalled the early days of the feminist movement and said lawsuits were a mistake—better to talk to people involved and work things out, if possible. Hikind, who has become adept at navigating city impositions on the Hasidim, concurred.

“Be smart,” said Hikind. “Don’t yell, don’t scream, don’t throw anything. But fight and don’t give up, regardless of what the odds are, regardless of anything. Here in New York of all places, with an administration that is so progressive, so liberal, here’s an issue that we won. I didn’t win, I think everybody won.”