Sex Discrimination

Women-Only Workout Areas in Exercise Facilities

The Connecticut Supreme Court will be hearing a case on this next week.

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The Connecticut Supreme Court will hear arguments May 5 on Comm'n on Hum. Rts. & Opportunities v. Edge Fitness, LLC, which raises whether Connecticut public accommodation discrimination law should be read as having an implied exception for women-only workout areas. Connecticut law generally bans sex discrimination in places of public accommodation, which is defined broadly enough to include health clubs; and though it has an express exception for "bathrooms or locker rooms," it has no broader exception for customer preferences that are seen as reasonable (or seen as linked in some measure to privacy defined broadly).

The trial court held that the law should indeed be read as implicitly allowing such areas:

The uncontroverted evidence in the record, which is supported by common experience, is that if the women-only work-out areas were eliminated, and women were deprived of the choice to exercise without men present, women would suffer from sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodations…. Exercising requires people to move and pose in ways that increase the possibility of sexual objectification and body shame, particularly for women. Thus, it appears that the gender privacy interest here is on par with the same interest that caused the legislature to specifically exempt bathrooms and locker rooms.

Although the sex based antidiscrimination provisions … protect both sexes equally, these provisions were originally included, to a large extent, to protect women and to correct historical discrimination patterns against women. Civil rights laws exist for the vindication and protection of human dignity. Thus, in interpreting and enforcing these statutes, we must ensure that we seek to be true to the overall goals.

With that in mind, it would be unusual to interpret and enforce a statute in a manner that injures women, when the statute's primary goals are the preservation of human dignity, the protection of women, and the correction of historical discrimination against women. That being said, the court also recognizes that discrimination itself injures society, however, the legislature, as noted, has allowed for limited exceptions in the pursuit of more important interests in certain circumstances.

As best I can tell, the issue has been litigated surprisingly little in other states—a Pennsylvania court read the state public accommodations statutes to allow women-only exercise facilities, see Livingwell (North) Inc. v. Pa. Hum. Rels. Comm'n, 606 A.2d 1287 (Pa. Commw. Ct. 1992), and a Massachusetts court held the opposite, Foster v. Back Bay Spas, Inc., 7 Mass. L. Rptr. 462 (Super. Ct. 1997) (result later modified by statute). (Some states, of course, might well have statutory exceptions, or not ban sex discrimination in public accommodations at all; Title II of the federal Civil Rights Act, for instance, doesn't cover sex discrimination in public accommodations.)

The court also added this, and an amicus brief from various Jewish, Muslim, and Catholic groups argues the same:

In addition to the protection of gender privacy interests, the women-only work-out areas also impact our right to freedom of religion…. [W]omen of certain faiths, such as Islam and certain sects of Judaism, are prohibited from exercising with men. Thus, unless women-only exercise areas are maintained, women of these faiths will not have an equal opportunity to exercise in these public accommodations…. [The Connecticut Religious Freedom Restoration Act] provides in relevant part:

(a) The state or any political subdivision of the state shall not burden a person's exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.

Here, the elimination of women-only exercise areas will disparately impact women of Islamic and Judaic faiths and will burden their ability to exercise in public accommodations. Although this result would be in furtherance of broad antidiscrimination prohibitions, there are exceptions to those prohibitions, as noted above, and the record does not reflect that elimination of women-only exercise areas would be the least restrictive means of accomplishing a compelling government interest. Thus, we have a potential clash of rights in eliminating discrimination without unduly burdening freedom of religion.

NEXT: The Legal Profession and the Case for Fundamental Reform: Introduction

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  1. Why would anyone care, as long as there is a males-only area too? (NB: it’s not just, or even primarily, religious females who have concerns about shared exercise areas. Religious males are under a much stronger prohibition against sharing a space with females dressed in typical exercise gear.)

    1. Burt male-only areas are verboten! Only exceptions are made for “protected” classes of people as determined by the government. Ans we all know that government would never use political tools like that to oppress anyone.

      1. So a “people of color only” area should be fine, so they don’t have to endure any of that awful white objectivication.

        1. No, because it is universally recognized that “separate but equal” has some legitimate application when it comes to the sexes, as opposed to race. We banned separate-race bathrooms over 50 years ago, but we still have separate-sex bathrooms everywhere, including public buildings.

          1. Except it seems that BIPOC-only “safe spaces” are making a comeback, in some areas

          2. “We banned separate-race bathrooms over 50 years ago, but we still have separate-sex bathrooms everywhere, including public buildings.”

            And the law has an express exception for separate-sex bathrooms.

      2. Right, the Superior Court decision makes clear that the purpose of the anti-discrimination statute is to remedy past discrimination against women, and such purpose would be frustrated by having a male-only area.

        1. I can’t tell whether the above comment is serious or facetious. That’s an indicator of how absurd our “civil rights” laws are.

        2. It all seems rather pointless, as everyone of either sex can identify as female.

      3. Charles, male-only areas are not only not forbidden, but are commonplace. They’re called bathrooms, etc. This case is about which other spaces might be considered, like bathrooms and changing rooms, places that it is legitimate to segregate by sex.

        The persecution complex you have doesn’t admit actual facts, does it?

        1. Nobody cares if women wander into a men’s bathroom. It only exists to keep them from wandering into where women take care of their business.

          It’s a double standard, but hardasses who refuse to recognize it end up with the opposition fighting fire with fire.

          Enjoy the world you have built, people.

    2. “Why would anyone care, as long as there is a males-only area too?”

      Since males objectify – can we keep the gay males out as well?

    3. Yeah, who cared enough to file a lawsuit against the gym? This is why we can’t have nice things.
      I’m not so comfortable with the way the judge is perverting this statute–I am much more comfortable with no one trying to enforce the law against such a common sense thing.

  2. Gloria Allred sued a female only gym for discrimination back in the 1980’s.

    https://www.latimes.com/archives/la-xpm-1987-03-26-me-59-story.html

    1. If there is money to be made and publicity to be gained, Gloria is there. She is what people in the BDSM community call an “attention s***.”

    2. I remember somebody in Massachusetts filed a complaint against a female lawyer who only took female clients in divorce cases.

  3. I don’t see how the Connecticut RFRA saves them. The segregated facilities are presumably not being created by Muslims and Jews for religious reasons. Under the corresponding federal law even if you have a right to do the drugs your religion requires, you don’t have a right to sell drugs.

    On the nondiscrimination law, I would hold that the explicit exception for bathrooms and locker rooms prevents courts from making up their own exceptions. I might be legislatively overruled as in Massachusetts, but that’s the legislature’s prerogative.

    1. “On the nondiscrimination law, I would hold that the explicit exception for bathrooms and locker rooms prevents courts from making up their own exceptions.”

      The Supreme Court (and specifically Justice Scalia), disagrees with you.

      “The Supreme Court further embraced an expansive view of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where Justice Scalia, writing for a unanimous Court, declared that ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’” Id. at 79.

      1. You’ve managed to get it exactly backwards, as anyone with any knowledge of Scalia might have guessed. The statement you quote does not suggest that courts can go beyond the language of a statute if a judge thinks that will achieve the policy goal the legislature was *really* trying to advance (e.g., protecting women rather than prohibiting sex discrimination). Rather, it was enforcing the language of the statute even though doing so might not address the “principal evil” the legislature was concerned about. As the Court stated, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed…. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” It’s impossible to twist that holding into supporting the idea that a judge can create a statutory exception because the legislature was *really* more concerned with protecting women than prohibiting sex discrimination.

      2. I’m interested in where ““The Supreme Court further embraced an expansive view of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where Justice Scalia, writing for a unanimous Court, declared that …” came from.

        It’s obviously some sort of commentary, which describes SCOTUS’s decision to follow the actual statutory text as “an expansive view.”

        I’m wondering what sort of commentator thinks following the actual text is “expansive.”

    2. If a Muslim woman wanted to join wouldn’t they be required to make an accommodation so she would have to exercise and associate with unrelated men?

      1. I was not able to find out easily what is required. It’s easy to find discussion of “reasonable accomodation” under the ADA and employment law. This is different.

        I don’t think restaurants need to serve Kosher, Halal, or vegetarian meals based on religious preferences. A New Jersey case held that a restaurant that promised Hindus a vegetarian meal could be sued in contract for failing to provide one.

  4. This reminds me of a story I’ve heard multiple times of American MPs in Britain telling a local pub that they needed to abide by the segregation that existed in the U.S. The MPs returned to check on things and saw a sign that only Black GIs were welcome.

    “In his essays George Orwell alluded to the oft-quoted assertion that American GIs were “oversexed, overpaid and over here”. But he qualified this with the observation that: “the general consensus of opinion is that the only American soldiers with decent manners are Negroes.””

    This situation and case does us the service of reminding us of why we have anti-discrimination laws. They exist and are necessary because humans have made it clear throughout their history that some of those in power will abuse that power in favor of their group. Whether it is men discriminating against women, whites discriminating against Blacks, Protestants against Catholics, or, (hat tip to Tom Lehrer) everyone against the Jews.

    Remember this when people want to claim some sort of exemption from anti-discrimination laws, or try and claim ‘reverse’ discrimination.

    1. Appreciate this. A truly excellent reason why Connecticut should no more discriminate against people who prefer same-sex partners for workouts than same-sex partners for other aspects of personal life. Very well said.

      1. And the reference to Orwell is appreciated. A law that suppresses people with same-sex preference solely because of their preference and solely because it thinks it somehow immoral, and then calls what it’s doing “anti-discrimination, ” is truly Orwellian.

    2. https://en.wikipedia.org/wiki/The_Chequer_Board

      Nevil Shute explored WWII racism in his novel The Chequer Board, and it includes an incident exactly as you describe. I’m not sure if he was lightly fictionalising a true story there, or if that’s the origin.

    3. By that basis, separate men’s and women’s bathrooms, locker rooms, showers, and sports teams should all be illegal discrimination.

      Heck – explain to me why it’s not “discrimination” for a fertility not to consider women as candidates as sperm donors. Or to not consider men as candidates to be surrogate mothers.

      1. “By that basis, separate men’s and women’s bathrooms, locker rooms, showers, and sports teams should all be illegal discrimination.”

        Not at all. No one has ever said that all discrimination is illegal. The bar to set is for when discrimination has a basis that can be judged as appropriate for the circumstances. Separate bathrooms and locker rooms are explicitly mentioned and excluded in the Connecticut law because of the obvious privacy concerns of individuals. Put simply, there are good reasons why a business would maintain separate facilities for men and women that basically everyone would agree with and that no one would think a business was maintaining as an effort to marginalize women. Same with sports teams. Was there ever any logic behind Whites Only water fountains? Or denying women access to most professions?

        “Heck – explain to me why it’s not “discrimination” for a fertility [clinic] not to consider women as candidates as sperm donors. Or to not consider men as candidates to be surrogate mothers.”

        It is “discrimination”, but it is discrimination based on the fact that women do not produce sperm and that men do not have a uterus.

        If someone can show that their restrictions based on some criteria that would otherwise be protected against discrimination is necessary and based on facts of life rather than biases against a group and an attempt to withhold power or benefits from that group, then it would likely pass legal muster, wouldn’t it? Do you have anything other than obviously absurd examples to use to challenge this?

  5. I think it’s time for the law to define “sex.” (Is it defined, distinct from “gender,” etc.? Not a lawyer….)

    And then maybe even “male” and “female” with some structure that permits the extreme exceptions to either category.

    Back to basics. Then we can work from there.

  6. Of course, this means that gyms will have to have more floor space and more equipment. Can they charge women more, due to the extra expense their women only area requires?

    I’m guessing not.

    1. Nonsense.

      The case is about allowing women-only areas, not requiring them.

      1. Sure, but say a gym chooses to make half of its space woman-only, and the other half available to everyone. Can they charge women more?

      2. Oh come on. You know that anything allowed will sooner or later be required.

        1. That’s true, and based on the argument that it should be allowed, maybe it should be required. If women need separate spaces to work out, maybe it’s discriminatory not to provide them.

          1. It’s not true. It’s absurd.

            1. Why? Seems pretty well covered by Ginsberg’s argument that anti-discrimination requires separate rest-room facilities for women.

              If women are less able to work out in mixed company, why would that be different?

              1. Why? Because there are states, the OP mentions MA and PA, where women-only spaces are allowed, and there doesn’t seem to be any effort to male them required. I live in MA, and would have heard.

                So you’re just throwing baseless crap out there like usual.

                I know, next you’re going to say “Wait and see. It just hasn’t happened yet.” More bullshit.

                1. OK, but what’s the argument that they shouldn’t be required, if not having them hurts women, like this decision suggests.

        2. That’s slippery-slope idiocy.

          “Well, even though what I said wasn’t true, we all know it will be soon enough (because I can’t admit I made a mistake).”

          Ridiculous.

  7. “The legislature gave an exception for X but not for Y, but we think there is at least as good of a reason for Y as for X, so we’re going to act like they gave an exception for Y.”

    1. Yeeeeeeep. Very bad judging. Apply the law as written and if the legislature thinks the law is bad they can change it.

      1. I don’t know if I would call it very bad judging. More like a judicial philosophy w/r/t statutory interpretation that I personally disagree with. But it’s not like this judge did anything new over here.

  8. Nothing beats the old, tired stereotype that all men are sex crazed monsters who are just craving to sexually objectify and harass women at every turn and moment. Truth is most men don’t care and just want to be able to do their job, work out, shop, or do any other daily activity while being left alone.

    1. Except in Afghanistan. Watch the movie Kandahar

    2. I’m not sure sexually objectifying women and harassing women are the same thing. The former may be a purely internal mental operation with no effect on the woman objectified, while the latter is an intrusion observable by the woman.

      I might take this opportunity to add that sexually objectifying a woman (in a non-harassing manner) is not only natural and (in some cases) unavoidable, but also perfectly reasonable. To any subject, all other humans are objects. And individuals to which you are sexually attracted are thus necessarily sex objects.

      The complaint that men might secretly be sexually objectifying women in the gym is like complaining that mosquitos bite. It is their nature. Moreover men are perfectly capable of sexually objectifying women in the supermarket checkout queue. A gym is not required.

      And so, mutatis mutandis, for female sexual objectification of men. The big difference is that many more men than women fall into the “no, not at any price” category. So there is less female sexual objectification of men than vice versa.

      But it is very doubtful that anyone, of either sex, in the “no, not at any price” category gives thanks for the fact that they are not going to suffer any sexual objectification.

  9. Don’t look now, but SCOTUS just granted cert in a concealed carry gun case.

  10. If it’s legitimate to characterize a preference for same-sex workout partners as “sex discrimination,” why isn’t it equally legitimate to call a preference for same-sex sex partners by the same name?

    Indeed, by its differential treatment of businesses that cater to same-sex workout partners and same-sex sex partners, Connecticut is arguably not applying “most favored business” status to religion as the First Amendment requires it to do. Many people use sex as a form of workout. Workouts involve ones body and bodily autonomy.

    Moreover, why shouldn’t this statute, which appears to exist only to implement the moral idea that there is somehow something wrong with a preference for same-sex workout partners, be struck down as a form of homophobic animosity? What rational, legitimate, non-homophobic, non-animosity-based purpose does it serve?

    This would appear to be a clear case of a “I do not love thee, Dr. Fell, the reason why I cannot tell” law.

    Surely the State is not going to be so biggotted or pigheaded as to try to argue that the mere existence of same-sex people working out and minding their own business is somehow going to interfere with what straight people do, let alone cause them psychological trauma or damage. That’s exactly the argument the Supreme Court found unacceptable in Lawrence and Obergefell.

    Why does being turned down for a workout do a person any more harm than being turned down for a date? And why shouldn’t people who feel traumatized by such things be given therapy for their acute homophobia, not for the state to reinforce their neuroses?

    1. “why isn’t it equally legitimate to call a preference for same-sex sex partners by the same name?”

      There’s discrimination, and unfair discrimination. The latter is commonly referred to colloquially as the former, and the ‘unfair’ bit literally goes without saying.

      1. But what exactly is fair about a law that prohibits women unable for religious or psychological reasons to work out with men from being able to work out? Physical fitness is important to health. What makes it fait to exclude people from this aspect of life just because one finds it icky?

        The anti-sodomy people would tell you that “unnatural” (or whatever their word for icky is) also goes without saying.

        One aspect of modernity is that we simply do not allow principles that result in excluding people from important aspects of life to go without saying. We have to talk about them.

        Indeed, “it goes without saying” is a pretty clear signal that what’s really at work here is irrational animosity, not a rational basis. Rational bases are, at the very least, things that can be talked about.

        What makes a “discriminatory” workout different from a “segregated” marriage? Why is it open season on one group but not the other?

  11. It is reasonable to criticize the weaknesses of this site’s comment system (no editing feature, for example, or the strained nesting), but the ability to publish so many comments from the 1950s is remarkable.

    1. Are you referring to the 1950s when people were less sympathetic to the idea of separate spaces for women, or the 1950s when people were more sympathetic to the idea of separate spaces for women?

      1. Lol. It takes work to troll so hard, but so vaguely.
        On the topic of the Rev., I was reading Westlaw’s “Acing Professional Responsibility” and several of the examples used a lawyer named Arthur Kirkland behaving badly. Either the author is a fan of old courtroom drama, or (much more likely IMHO) she reads this blog and dislikes the Rev. as much as anyone else.

        1. The legendary Arthur Kirkland.

          (who may have developed something in common with Levee Green last night, although I doubt Anthony was anything like that talentless hack Ted Kramer)

  12. Isn’t CT where they emphatically allow mean identifying as women on HS Track Teams?

    And are some genders more equal than others? If so, which of the 2-56+?

    1. Yup. Progressives have figured out a way to eliminate women’s sports and give men access to women’s prisons in a way that feminists have to approve of. Gotta hand it to ’em.

    2. Would you be willing to claim to identify as a woman in return for access to a women’s only section? I think there’s a psychological barrier even if there isn’t a legal one.

      1. Frankly, it’d be more like go in like you own the place. Threaten legal cation if the gym tries to do anything. There are sociopaths who will do this.

  13. “With that in mind, it would be unusual to interpret and enforce a statute in a manner that injures women, when the statute’s primary goals are the preservation of human dignity, the protection of women, and the correction of historical discrimination against women.”

    But it seems to me that one of the goals of these anti-discrimination laws was to prevent women from being subjected to stereotypes like these:

    If “…women were deprived of the choice to exercise without men present, women would suffer from sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodations…. Exercising requires people to move and pose in ways that increase the possibility of sexual objectification and body shame, particularly for women.”

    I mean, are they equal or not?

  14. From what Prof Volokh says, the Massachusetts case got it exactly right: the court read the law as written, and the legislature then said that it wanted to include more exceptions. That’s the process working the way that it’s supposed to work.

  15. Isn’t this the same issue as women-only cars on commuter trains? Where are we on that?

    1. Some people need safe spaces; others do not deserve them.

      I apologize for being one of the “what’s good for the goose…” types.

  16. The problem with enforced anti-segregation is that it requires painstaking attention to race, gender, and whatever else must be desegregated; it turns everybody into a segregationist.

    The alternative of free association leaves natural bigots alone, free to be salutary lessons to the rest of society, which is left alone to just get along.

    My feeling is this all went south with the 1960s Civil Rights Acts, which undid mandatory segregation with mandatory integration, which necessitated the painstaking attention to race which has made everybody into segregationists. Then Women’s Lib wasn’t satisfied with freedom, bu wanted mandatory, you guessed it, painstaking attention to gender which has made people into even worse segregationists.

    Too bad Freedom of Association isn’t an enumerated right, but I suspect the Supreme Court would have made it an even less fundamental right than Keeping and Bearing Arms.

  17. These discrimination cases are an attack on the patriarchal family by the lawyer profession. The family must be saved from these attacks.

  18. Equal rights, dude, no sexism, no discrimination, hot girls in yoga pants hubba hubba, and in the alternative my true sex is female because I feel like a woman, know what I mean?

  19. I can’t see why this is even an issue. If enough people in the community want it then why not? There are women’s only swimming pool hours in some places for the same reasons already.

    1. “I can’t see why this is even an issue. If enough people in the community want it then why not?”

      Agreed. But then they told us it was wrong. Now they’re saying maybe it’s not always wrong.

    2. Too lazy to google it but I saw a case where a condo owner sued his HOA for making separate hours at the pool, and won.

  20. Where are all the woke people? Saying that men are men and women are women is highly offensive in their view.

    The sign on the door should say, “Admittance to only certain personal pronoun preferences.”

    1. At the entrance to the gym the hallway forks. One arrow points left and a second points right. The left arrow bears the label “Neanderthals”, the right, “Unicorns”.

      1. Do you guys ever wonder why educated, reasoning, accomplished, modern America is abandoning the Republican Party, churches, and our can’t-keep-up rural and southern backwaters? Or why the culture war has been lost by conservatives?

  21. Edge Fitness would have done well to have found a group of women to intervene who could claim that without its services, they would not have access to workout facilities where they could feel comfortable or comply with their religious requirements, and this would cause them to exercise less and their health to suffer.

    If it’s still possible, it would be highly advisable for a group of women who use and need these facilities to at least file an amicus brief (if not an intervention) where they can describe themselves as real and whole people and explain their situation in personal terms, so that the court can have an opportunity to get to know their stories and empathize with them. If others just talk about them rather than presenting as real people, this inevitably tends to relegate their existence and needs to the realm of hypothetical abstractions and fails to communicate the impact involved in a concrete and human way.

    Say their names.

    1. That or something much like it is already in the record. The judge’s findings of fact are favorable to women who want to exercise without men.

      1. From a Hartford Courant article: “The Edge brought in as an expert witness, Dr. Diane Quinn, a UConn psychology professor, who surveyed 374 women members of the club about why the separate workout area was important to them. She said in a report that about 62% of them indicated they’d consider canceling their club membership if the women-only area were eliminated.”

        There is no cost for saying you would consider doing something in a hypothetical case. I would discount this statistic. Look at what people do, not what they say they would hypothetically consider doing. Does Edge have more women members than similar gyms without segregated areas?

    2. “… they would not have access to workout facilities where they could feel comfortable or comply with their religious requirements.”

      Requiring public accommodation of private decisions, such as one’s chosen religious observations, is excessively burdensome. Religious identity groups who seek their own particular requirements for health can form their own private gyms. They might call them young men’s christian association, young women’s christian association, jewish community center association, and even a young men’s muslim association.

      1. These people don’t want public accommodation of anything. They just want the State to butt its head and its hate out of their business.

  22. The trail court’s decision has a compelling policy argument. The plain wording of the statute, however, does not support it. The trial court was wrong. This is the legislature’s job to fix. If the legislature wants to exempt workout areas, they should do so explicitly.

  23. Is a ‘males only’ exercise area lawful?

    If so/not, then the same for a female only exercise area.

    I’m old enough to remember when Americans had the freedom of association…

  24. Training in a team gives you more inspiration and strength to continue and not stop. I read here https://www.forbes.com/sites/anthonykarcz/2021/05/19/beachbody-takes-on-peloton-with-bodi-live-interactive-workout-service/?sh=7f81803c518c about interactive training, I think it’s a cool idea

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