Legal aspects of regulating bathhouses: cases from 1984 to 1995

Public health measures regulating or closing bathhouses and other businesses facilitating consensual sexual activity among strangers have generally been upheld by courts. Using standard legal research methods, this study sought (1) suits brought by government authorities to close a sex-facilitating business (SFB) based at least in part on health concerns, and (2) suits filed by SFBs to invalidate state laws or local ordinances banning closed booths or other architectural features that facilitate sexual activity. The research yielded eight published and unpublished trial or appellate opinions between 1984 and 1995 in which local health or other officials filed a law suit to close or otherwise interfere with sex at a bathhouse or other SFB. In seven of the eight cases, the state prevailed entirely or in large part in securing the relief it sued for. Factors influencing these results include the traditional deference of courts to public health officials, stigma, and limited legal recognition of a right to public sexual activity. Major questions include the extent to which coercive health measures increase stigma or social hostility towards gay men, whether closure actions "educate" at risk-individuals about the danger of anonymous unprotected sex, and what effect legal action has on the frequency of unsafe behavior.