The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.