dissenting:

I dissent. Had the district court correctly construed the Unruh Act, plaintiffs would have shown a likelihood of success on the merits of their claim that the IOC violated California law by excluding them from the Los Angeles Olympics. Because the Unruh Act disposes of this appeal, I do not reach the equal protection issue. 1

*681 I

Discrimination Against Women Athletes in the Olympics

Baron Pierre de Coubertin, founder of the modern Olympic Games, described the Olympics as “the solemn and periodic exaltation of male athleticism with internationalism as a base, loyalty as a means, art for its setting, and female applause as reward.” As late as 1954, the International Olympic Committee (IOC) voted to limit women’s participation to those events “particularly appropriate to the female sex.” This attitude toward women has resulted in a continuing disparity between male and female opportunities to compete in the Olympic Games.

From the beginning, women athletes have challenged the IOC’s policy of discriminating against them in track and field. Women were not permitted to participate in track and field events until the 1928 Games, when the IOC included eight events for women. That year, women from the British team boycotted the Games to protest the IOC’s failure to include a full program of events for women athletes. After the 1928 Games, in which several women athletes collapsed after the 800 meter race, the IOC voted to further limit women’s races to 200 meters Q-k lap around the track). This restrictive policy continued for 32 years until the IOC reinstated the 800 meter race for the 1960 Games.

Until quite recently, the IOC and its track and field affiliates refused to sanction any distance races for women. When officials of the Amateur Athletics Union discovered that Katherine Switzer had run the 1967 Boston Marathon, they suspended her from the AAU. 2 The longest race for women at the 1980 Games was only 1500 meters.

The track and field program for men, on the other hand, was virtually complete by the 1912 Olympics. The IOC has added only two events to the men’s track and field program since then. In the 1984 Games, despite the recent addition of three women’s events, the men’s track and field program will still include seven more events than the women’s program.

Against this background of institutionalized, gender-based discrimination, the IOC in 1949 adopted a facially neutral policy designed to limit the number of new events added to the Olympic program. Because women started from a position of distinct disadvantage in the total number of Olympic events, this policy, now Rule 32 of the Olympic Charter, affected women athletes disproportionately and contributed to continuing gender-based disparity in opportunities for Olympic competition. 3 The adoption of Rule 32 does not excuse the fact that men are permitted to compete in middle-distance races and women are not.

II

Unruh Act Claim

A. Scope of the Act

The district court found that the balance of hardships tips decidedly in favor of plaintiffs, but denied a preliminary injunction because the court believed that plaintiffs were unlikely to succeed on the merits of their Unruh Act claim. Proper application of the Unruh Act is thus crucial to the disposition of this appeal. The Unruh Act declares:

Cal.Civ.Code § 51 (West 1982). Because defendant organizations constitute a business establishment, and the opportunity to compete in the Olympics is a privilege or advantage that defendants provide, the opportunity for women to compete in the Los Angeles Olympics on an equal basis with men falls within the scope of the Unruh Act.

The California courts have liberally construed the business establishment requirement. The California Supreme Court has held that the statute’s inclusive language demonstrates a legislative intent that the term be construed “in the broadest sense reasonably possible.” O’Connor v. Village Green Owners Association, 33 Cal.3d 790, 796 , 662 P.2d 427, 431 , 191 Cal.Rptr. 320, 324 (1983) (nonprofit condominium owners association held to be a business establishment).

An organization is within the scope of the Unruh Act unless it is “truly private.” Curran v. Mount Diablo Council of The Boy Scouts of America, 147 Cal.App.3d 712, 733 , 195 Cal.Rptr. 325, 337 (1983). In Curran , the court found that the Boy Scouts were a business establishment because the organization opened its membership to the general public. Id. at 732 , 195 Cal.Rptr. at 337 . Although the court established no single test for determining what constitutes a private club, it found that exclusivity of membership is necessary. Id. at 731 , 195 Cal.Rptr. at 337 .

The Olympic Games are not run as a private club. To the contrary, the organizers of the 1984 Olympics have emphasized, especially in response to the recent national boycotts, that their policy is to encourage athletes from around the world to participate, subject only to their athletic qualification. Moreover, the United States Olympic Committee, like the Boy Scouts, Curran, 147 Cal.App.3d at 734 , 195 Cal.Rptr. at 339 , operates under a congressional charter. In so doing, the Committee provides a similarly quasi-public service. I would therefore find that defendants constituted a business establishment.

Plaintiffs have also satisfied the second requirement of the Unruh Act — that the right denied to the women runners be an accommodation, advantage, facility, privilege, or service. Although the Unruh Act was modeled upon traditional public accommodations statutes, the Act expanded the scope of those statutes. Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 731 , 640 P.2d 115, 120 , 180 Cal.Rptr. 496, 502 , cert. denied, 459 U.S. 858 , 103 S.Ct. 129 , 74 L.Ed.2d 111 (1982). Thus, in Curran , the court had no trouble finding that the opportunity to join the Boy Scouts was a service under the Act. Curran, 147 Cal.App.3d at 733 , 195 Cal.Rptr. at 338 . Further, the construction of other public accommodations statutes supports the conclusion that participation in an athletic contest is within the scope of the Act. See United States v. Slidell Youth Football Association, 387 F.Supp. 474 (E.D.La.1974) (federal public accommodations statute covers establishments which provide a form of participatory entertainment); New York Roadrunners Club v. State Division of Human Rights, 81 A.D.2d 519 , 437 N.Y.S.2d 681 (1981) (participation in the New York City Marathon is covered by New York state public accommodations statute), aff'd on other grounds, 55 N.Y.2d 122 , 432 N.E.2d 780 , 447 N.Y.S.2d 908 (1982); National Organization for Women, Essex Chapter v. Little League Baseball, Inc., 127 N.J.Super. 522 , 318 A.2d 33 (App.Div.1974) (private, nonprofit baseball organization is public accommodation under New Jersey statute).

I do not believe that the California Legislature intended that an athletic contest such as the Olympics, which is a major public event, should be free under California law to discriminate openly against a class of participants on the basis of sex, race, color, religion, ancestry, or national origin.

*683 B. Discrimination Under the Act

The primary purpose of the Unruh Act is “to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the Act.” Curran, 147 Cal. App.3d at 733 , 195 Cal.Rptr. at 338 ; see also Marina Point, 30 Cal.3d at 733 , 640 P.2d at 125 , 180 Cal.Rptr. at 507 . Although the Act explicitly prohibits discrimination on the basis of sex, the Act has been construed to bar all forms of arbitrary discrimination. In re Cox, 3 Cal.3d 205, 216 , 474 P.2d 992, 999 , 90 Cal.Rptr. 24, 31 (1970). Arbitrary discrimination has been defined as the exclusion of individuals based on a generalization about the class to which they belong. 4 Marina Point, 30 Cal.3d at 740 , 640 P.2d at 126 , 180 Cal.Rptr. at 508 .

Unlike the equal protection clause of the fourteenth amendment, the Unruh Act requires the court to find only that women are excluded from the particular privilege, facility, or service. The motivation for that exclusion is irrelevant. Contrary to the majority’s belief, the existence of a facially neutral rule, such as Rule 32, which effectively perpetuates past discrimination, is also irrelevant to the Unruh Act analysis. The Act eschews any form of discrimination based on sex, race, color, religion, ancestry, or national origin practiced or perpetuated by a business establishment. In grafting onto the Unruh Act a discriminatory purpose analysis, the majority disregards the Act’s focus on the individual’s right of equal access to the facilities and privileges of business establishments. See Marina Point, 30 Cal.3d at 740 , 640 P.2d at 126 , 180 Cal.Rptr. at 508 . Under the majority’s “arbitrary” Unruh Act analysis, had the “no children” policy in rental housing in Marina Point been less than obvious, the California Supreme Court would have had to sustain the landlord’s policy, regardless of its discriminatory effect, because the policy was “rationally related” to his business. 5 Marina Point, however, requires defendants to justify any exclusion of individuals from a business enterprise on the basis of class or group affiliation by demonstrating a “compelling societal inter *684 est” for doing so. Id. at 743 , 640 P.2d at 128 , 180 Cal.Rptr. at 510 . 6

Defendants have not presented a compelling societal interest to justify the exclusion of women from competition in the 5.000 and 10,000 meter races. Members of the Los Angeles Olympic Organizing Committee have acknowledged that, even at this late date, it would be administratively possible to add the events. Further, plaintiffs have even satisfied defendants’ rule limiting the Olympic program to widely practiced events that can attract a representative field of competitors. Plaintiffs demonstrated below that women throughout the world participate in the 5,000 and 10.000 meter events, even though international track and field organizations sanctioned the two events with world-class status only four years ago.

In short, the California Supreme Court’s construction of the Unruh Act in Marina Point leaves little room for debate: when individuals are excluded from full and equal access to a privilege that a business establishment provides, the exclusion violates the Unruh Act unless defendant can point to a compelling societal justification for the exclusion. Because defendants have not shown a compelling reason for excluding women runners from competing in the 5,000 and 10,000 meter races, the injunction should issue.

Ill

Conclusion

The IOC made concessions to the widespread popularity of women’s track and field by adding two distance races this year. The IOC refused, however, to grant women athletes equal status by including all events in which women compete internationally. In so doing, the IOC postpones indefinitely the equality of athletic opportunity that it could easily achieve this year in Los Angeles. When the Olympics move to other countries, some without America’s commitment to human rights, the opportunity to tip the scales of justice in favor of equality may slip away. Meanwhile, the Olympic flame — which should be a symbol of harmony, equality, and justice — will burn less brightly over the Los Angeles Olympic Games.

. Plaintiffs appeal the district court’s denial of a preliminary injunction. The action was origi *681 nally filed in the California state courts but was removed to the federal district court under federal question jurisdiction. 28 U.S.C. § 1331 (1982). We have pendent jurisdiction over the Unruh Act claim.

. The Amateur Athletics Union is the precursor to The Athletic Congress, the organization that governs amateur track and field in the United States.

Katherine Switzer ran under the name "K. Switzer." When officials discovered that “K. Switzer” was a woman, they unsuccessfully attempted to remove her from the race.

. In fact, for all events in the 1980 Olympics, male athletes had three times the number of opportunities to win an Olympic medal that female athletes had.

. The majority apparently believes that the Unruh Act does not apply to plaintiffs’ claim because plaintiffs ask the court to order the addition of equal races for women, but not to compete against men. By this reasoning, a public library that provided restrooms for men only could not be compelled under the Unruh Act to provide separate facilities for women.

The courts have acknowledged, however, that separate athletic teams or competitions for men and women may provide equality of opportunity. Lafler v. Athletic Bd. of Control, 536 F.Supp. 104, 106 (W.D.Mich.1982); see Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126 , 1128-32 (9th Cir.1982); O'Connor v. Bd. of Educ., 645 F.2d 578 , 582 (7th Cir.1981); Petrie v. Illinois High School Athletic Ass’n, 75 Ill.App.3d 980 , 394 N.E.2d 855, 863 , 31 Ill.Dec. 653, 660 (1979); Mularadelis v. Haldane Cent. School Bd., 74 A.D.2d 248, 255-57 , 427 N.Y.S.2d 458, 463-64 (1980); see also 45 C.F.R. §§ 86.41 & 106.41(b) (1983) (separate teams for each sex satisfies Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686 (1982)). Moreover, defendants, not the women runners, created the system of separate events for men and women in the Olympics, and, therefore, should not now use that decision as a shield against legal action to end discrimination.

Finally, my concurring colleague’s views on separate but equal would be persuasive if we were dealing with invidious discrimination based on race, religion, or national origin. But the analysis misses the mark in a case dealing with gender-based discrimination in athletic contests. Comparing the odious doctrine of apartheid with separate athletic events for men and women distorts the concept of equality of opportunity in athletic contests and overlooks the physical differences between the sexes as well as the cases considering this issue cited above. If the concurrence’s reasoning were carried to its logical conclusion, all Olympic events in which men and women participate separately would be banned as apartheid.

. For example, the majority’s analysis would allow an all-male civic club that had originally explicitly excluded women to adopt a regulation requiring any new member to be approved by a 2/3 vote of the existing members. The policy might be rationally related to maintaining camaraderie among the members but it certainly could also be used to discriminate against women. See United States v. Slidell Youth Football Ass’n, 387 F.Supp. 474 (E.D.La.1974).

. Defendants' contention that Marina Point requires a rational relationship test is incorrect; Marina Point explicitly rejects the rational relationship test. Marina Point, 30 Cal.3d at 740 -41 n. 9, 640 P.2d at 127 n. 9, 180 Cal.Rptr. at 508 n. 9.