—Although the majority’s conclusion that the Santa Cruz Boys’ Club (Club) is a “business establishment” is by no means compelling (see Comment, The Unruh Civil Rights Act: An Uncertain Guarantee (1983) 31 UCLA L.Rev. 443), I concede, at least for the sake of argument, that facilities such as the Club are, prima facie, covered by section 51. Were it otherwise, the Club could discriminate on bases—e.g. race—which would never pass muster under the test we laid down in In re Cox (1970) 3 Cal.3d 205, 217 [90 Cal.Rptr. 24, 474 P.2d 992]. Nevertheless I believe that the majority is tragically mistaken in holding that the exclusion of girls is unreasonable and arbitrary and, therefore, in violation of the statute.
Before stating my reasons, I feel compelled to express puzzlement at the majority’s repeated mention of the fact that there is no comparable facility *99for girls in the Santa Cruz area.1 If there were a Girls’ Club in Santa Cruz, would the majority be satisfied with “separate but equal” facilities? If there were two boys’ clubs, would each have to admit girls? Two boys’ clubs and one girls’ club? Unless the majority is prepared to suggest that the existence of additional facilities might affect its conclusions, I respectfully submit that the references to the Club’s monopoly are of no legal significance.
To get down to business: at the outset of its opinion the majority states that its analysis does not “necessarily” apply to (1) organizations which operate facilities not generally open to the public, or (2) organizations which can demonstrate a compelling need to maintain single-sex facilities. I submit that if these disavowals are sincere, the majority has reached the wrong result for two independent reasons.
To establish that the Club is a facility that is generally open to the public, the majority states that it “offers basic recreational facilities to a broad segment of the population, excluding only a particular group expressly recognized by the Act as a traditional target of discrimination.” (Ante, p. 84.) (Italics in original.) Sounds good, but what are the facts? The “broad segment” of the population consists of boys between the ages of eight and eighteen. On the other hand, the “particular” group which is excluded is the rest of humanity. I submit that the only way to reach the conclusion that the Club is “generally open to the public” is to look at the included and excluded groups through different ends of a telescope.
Further, I believe that the Club has demonstrated “a compelling need to maintain single-sex facilities.” The majority quite properly holds that section 51 only forbids arbitrary sex discrimination. One would think, then, that if one of the main goals of the Club is the control of juvenile delinquency and those who guide its affairs have made a reasoned decision that this goal is best advanced by a prophylactic application of the Club’s limited resources to that group of youngsters from which the majority of serious delinquents seems to come—boys—that is surely not arbitrary. Yet all that the trial court had to say on the subject was to conclude, erroneously, that “[discrimination on the basis of sex is per se illegal under [section 51]” adding, however, that even if the act “prohibited only arbitrary discrimination on the basis of sex, defendants have arbitrarily discriminated against plaintiffs . . . .’’No reason was given why it is arbitrary to spend the de*100linquency prevention dollar where it is thought to do the most good.2 Of course, if those who guide the Club’s fortunes could predict with some degree of accuracy which particular individuals—girls as well as boys— were headed for a life of crime, it would obviously not do to classify boys as a group as potentially more delinquent than girls. No one, however, ascribes such clairvoyance to defendants.3
The majority seeks to improve on the trial court’s ipse dixit by asserting that because some delinquents are girls, the Club should have proved that “a sex-segregated . . . facility is more effective in combating juvenile delinquency than one open to both sexes, ...” Why did the Club have a burden in that respect? If it acted in good faith—and no one claims that it did not—why should it have to prove that a perfectly defensible decision on how to spend its resources has actually proved to .be the most effective one? Is a reasonable decision, rationally related to the services and facilities of the Club—the test of Cox, supra, 3 Cal.3d 205—not reasonable tinless proved to be the best solution to the problem under attack?
For obvious reasons the majority admits that there are certain activities which even section 51 permits to be carried on in sex-segregated fashion. The real problem is the extent of this immunity from the reach of section 51. Evidently those responsible for the Club’s policy have decided that it is beneficial for boys to have some time when they do not have to adjust their behavior to the presence of girls. There is, of course, a vast professional literature on the subject.4 Who are we to say that it is unreasonable for the *101Club’s management to believe that there is a rational basis for giving boys a few hours a day when they do not have to carry their machismo on their sleeves? Whether or not we share these views is immaterial. What matters is that we have no right to force contrary theories on those who have devoted considerable time, energy, devotion and financial resources to the problem.
If I may suggest, the basic mistake of the majority opinion is that it views the Club’s policies as being pointed toward the exclusion of girls. With that chip on the majority’s shoulder, pejoratives come easily. If the court looked at the Club’s activities more benignly as providing a service for boys—a service tailored to their needs—it would not find it necessary to reach such a wondrous result.
I therefore dissent.
On December 10, 1985, the opinion was modified to read as printed above. Appellant’s petition for a rehearing was denied December 19, 1985. Mosk, J., Lucas, J., and Kaus, J.,* were of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
“No single program or facility open to girls offers a similar range of activities at similar cost.” (Ante, p. 77.) “The effect of this policy in Santa Cruz is to deny the excluded group . . . access to recreational opportunities available nowhere else in the vicinity.” (Id. at p. 89.)
In Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 736-740 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161], we dealt with the problems of apartment landlords seeking to secure their tenants’ tranquility by keeping out all minors because, as a class, kids are noisier, rowdier and more mischievous. We condemned such class discrimination, recognizing, of course, landlords had “broad authority to protect their enterprises from improper and disruptive behavior” by excluding “those persons who are in fact disruptive.” The situation with respect to prevention of juvenile delinquency is, of course, not at all analogous. By the time a youngster has become a delinquent the Boys’ Club program of prevention has already failed.
I do not claim that the same considerations would be valid if, for example, statistics showed that members of a particular racial group or religion were more prone to turn delinquent. Some suspect classifications are simply more suspect than others and demand greater degrees of justification. (Ante, p. 87, fn. 15; see also Michael M. v. Sonoma County Superior Court (1981) 450 U.S. 464, 469 [67 L.Ed.2d 437, 442, 101 S.Ct. 1200, 1204].)
I quote just by way of example from Lyles, Grouping by Sex (Nov. 1966) 46 Nat. Elementary Principal at page 38. The author describes the result of an experiment separating 31 fourth-grade boys from girls: “The teachers and I feel that the following are some of the reasonably obvious advantages of single-sex classes: [¶] 1. There are fewer serious discipline problems. The behavior of the boys in separate classes seems more normal and is more acceptable to teachers. [¶] 2. The students are much happier and display a greater interest in all subject-matter and skill areas. [¶] 3. There is better attendance, which we feel is a direct result of the fact that the pupils like school more. [¶] 4. Children who have been withdrawn become more outgoing, more confident. (This is true of both boys and girls.) [¶] *1015. Students are more willing to ask questions if they do not understand something and feel freer to discuss ideas which otherwise might be embarrassing to them. In health, for example, both boys and girls are more at ease in studying the body, and the boys have made charts, drawings, and reports without urging. [¶] 6. Boys are more thoughtful and considerate of each other. They seem to want to help each other when someone is having difficulty, [¶] 7. Competition between the sexes is eliminated, and there is an excellent opportunity to establish the idea of working against one’s own record rather than competing with others. [¶] 8. There is evidence of more cooperation within an all-boy or an all-girl class. A tremendous esprit de corps develops within the classes, [¶] 9. The lack of distractions from the opposite sex results in better work habits. [¶] 10. Motivation can be developed much more easily because it is not necessary to gear class work to the interests of both sexes. Instructional materials can be selected in terms of the particular characteristics and interests of the sex being taught. (This is especially true in reading and science.) [¶] 11. Boys take part more freely in art and music and do better work in foreign language when they are in separate classes, [¶] 12. There is greater participation in class activities. Both boys and girls overcome their fear of standing in front of a class to give reports and oral readings. There have been cases of striking improvement in this area. [¶] 13. Boys accept all phases of language arts instruction without complaint when there are no girls present. Boys who are below level in reading work harder in order to be nearer the level of their classmates, [¶] 14. It is much easier to do a good job in physical education—and this is significant in view of the importance of the first twelve years in developing physical skills, [¶] 15. The retention rate dropped in our entire school enrolment from 10 per cent in 1961-62 to 3 percent in 1962-63.”
See also Monagan, The Failure of Coed Sports (Mar. 1983) 17 Psychology Today 58: “[A]fter a decade of attempts to rewrite the lineups of childhood, the great coed sports experiment appears to be failing. Although scarcely anyone asks them, most girls—and especially boys—don’t seem to want any part of it, for reasons that may be as deeply entrenched as anatomy and the torturous uncertainty of adolescence itself.”
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.