The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Sex Discrimination

"Women's Only Workout Spaces" in Connecticut Public Accommodations Are Illegal

The state law banning sex discrimination in public accommodations has no specific exemption for such spaces, and the Connecticut Supreme Court declines to read one into the law.


From Chief Justice Robinson's opinion in Comm'n on Human Rts. & Opportunities v. Edge Fitness, LLC [UPDATE: link fixed]:

We conclude that the exceptions to the general prohibition against discrimination on the basis of sex in public accommodations are limited to those expressly provided by the plain language of § 46a-64 and, therefore, that there is no implied customer gender privacy exception to the statute.

General Statutes § 46a-64 provides in relevant part:

(a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; (2) to discriminate, segregate or separate on account of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, learning disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran ….

(b) (1) The provisions of this section with respect to the prohibition of sex discrimination shall not apply to (A) the rental of sleeping accommodations provided by associations and organizations which rent all such sleeping accommodations on a temporary or permanent basis for the exclusive use of persons of the same sex or (B) separate bathrooms or locker rooms based on sex….

Because the women's only workout spaces do not fall under an express exception, the defendants ask us to interpret § 46a-64 (b) (1) to include a third, implicit exception to the prohibition against sex based discrimination, namely, a broad gender privacy exception. The defendants argue that such an exception is implied by the bodily privacy interests that the enumerated exceptions protect and that the inclusion of a third exception would be consistent with other portions of the statutory scheme. The defendants further rely on General Statutes § 46a-60 (b) (1), which provides for an exception to the general ban on sex discrimination in employment when sex constitutes a bona fide occupational qualification (BFOQ) for a position. The defendants ask us to read the statutes in relation to one another and to conclude that the inclusion of the BFOQ defense in the context of employment discrimination evidences a legislative intent to include an implied gender privacy exception to the ban on discrimination in public accommodations. We disagree ….

It is well established "that the legislature, in amending or enacting statutes, always [is] presumed to have created a harmonious and consistent body of law …." Declining to read a BFOQ like exception into § 46a-64 (b) (1) does not render it inconsistent with § 46a-60 (b) (1). Had the legislature intended to include a third exception to the general ban on sex based discrimination in public accommodations, it could have done so. Indeed, the legislature's inclusion of a BFOQ exception in § 46a-60 (b) (1) demonstrates that the legislature could have provided such an exception in the public accommodation statute but consciously elected not to do so. As this court stated more than thirty years ago, "[a] review of our labor legislation discloses that our General Statutes treat employment discrimination separately from public accommodation discrimination. We deem it especially significant that only the former statute contains an express exception for a 'bona fide occupational qualification or need' … [in concluding that] [o]ur public accommodation statute … gives no indication that it was intended to encompass the proffer of services within its definition of discriminatory accommodation practices. The absence of a statutory exception for a 'bona fide occupational qualification or need' in the text of [the public accommodation statute] is more consistent with a legislative intent to leave such practices to be regulated by statutes that address employment discrimination rather than by statutes directed to discrimination in public accommodations."

In this vein, we address the argument of the defendants and interfaith amici; see footnote 5 of this opinion; that a conclusion that the statutory text plainly and unambiguously lacks a gender privacy exception will lead to absurd or bizarre results by eliminating other women's only spaces and impeding the religious freedom of women seeking to use those facilities. They rely on the prediction of the referee and the trial court that, if the statute's exceptions were construed strictly, the provision of separate showers, dressing rooms, lactation rooms, domestic violence shelters, and hospital rooms would constitute a violation of the statute. We disagree.

First, although such facilities are not at issue in this appeal, it is not at all clear that they would not fall within the existing statutory exceptions for bathrooms, locker rooms, and sleeping accommodations, as interpreted using our rules of statutory construction. Second, even if we were to assume, without deciding, that restricting the facilities identified by the referee and the trial court to women constitutes impermissible discrimination and that such a result is indeed absurd, thus permitting resort to the legislative history of § 46a-64 (b) (1), that legislative history does not support the defendants' argument. Instead, it indicates that the legislature has rejected the concept of abstract notions of gender privacy in favor of a more narrowly cabined exception when warranted. [Details omitted. -EV]

{We note that no constitutional claim has been raised in this appeal. Thus, we do not consider the implications that § 46a-64 may have in relation to constitutional provisions and statutory safeguards such as the Connecticut Act Concerning Religious Freedom. See General Statutes § 52-571b. We leave these questions, including any gloss necessary to save § 46a-64 (a) from constitutional jeopardy, for another day, in a case that squarely presents them.} …

[W]e observe that a reading of § 46b-64 (b) (1) to imply a gender privacy exception, although presumably to benefit women, could also negatively affect the rights of women in a different way. As discussed in the amicus briefs filed by the Quinnipiac University School of Law Legal Clinic, the American Civil Liberties Union of Connecticut, and the GLBTQ Legal Advocates & Defenders, Lambda Legal Education and Defense Fund, Inc., and the Connecticut Transadvocacy Coalition, such an exception could be invoked to exclude women based on the privacy interests of men and could justify discrimination against transgender individuals because some customers, "due to modesty, find it uncomfortable" to be around such people. Livingwell (North), Inc. v. Pennsylvania Human Relations Commission (Pa. Commw.  Ct. 1992) ("The privacy interest expressed involves situations [in which] the customers, due to modesty, find it uncomfortable to have the opposite sex present because of the physical condition in which they find themselves or the physical activity in which they are engaged as customers at the business entity. These customers would be embarrassed or humiliated if cared for or observed by members of the opposite sex."). Such a result of potentially limiting the access of women and transgender people access to spaces on the basis of the privacy interests of men or the "moral comfort" of customers defeats the purpose of our state's antidiscrimination legislation.

Nevertheless, we acknowledge that our analysis of the plain and unambiguous statutory text of § 46a-64 may lead to a result that might well have been unintended by the legislature, including with respect to its application in hypothetical scenarios involving lactation rooms or dressing rooms, as posited by the defendants, the referee, and the trial court. As the United States Supreme Court recently noted in construing the language "because of sex" in Title VII of the Civil Rights Act of 1964 to apply to employment discrimination against homosexual or transgender persons, this effect is not a reason to depart from the plain and unambiguous statutory text of § 46a-64….

Thus, the sensitivity of the determination of where to limit antidiscrimination protections, along with evolving contemporary understandings of the terms "gender" and "sex," renders this issue uniquely well suited for consideration in the first instance by the legislature, which is the policy-making branch of our government.

We therefore conclude that the defendants' gyms are places of public accommodation that have denied the complainants full and equal accommodations on the basis of their sex….

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.)