Agency fights allowance for female privacy at fitness clubs

Connecticut’s human rights agency is escalating a three-year fight against coed fitness clubs’ practice of giving female customers the option of using women-only workout areas near their locker room for privacy.

The Commission on Human Rights and Opportunities already has been rebuffed twice in its claim that the clubs’ accommodation for women amounts to illegal sex discrimination — in 2019 by an administrative hearing referee and in July by a Superior Court judge — but last month it filed an appeal with the Connecticut Appellate Court, and asked that the case go straight to the state Supreme Court.

It’s an unexpected turn for the CHRO, whose job is to eliminate discrimination based on race, religion and gender, among other factors.

Typically, the agency sticks up for women — but in this case the fitness clubs have argued, and the adjudicators have ruled, that it would actually harm women if the CHRO got its way and they lost this sanctuary from the usual eyeballing, and sometime comments and harassment, from men.

“[T]estimony established that women exercise in form fitting revealing clothing and assume exercise positions that can reasonably be understood to be revealing and embarrassing, particularly in the presence of strangers of the opposite sex, thereby giving rise to legitimate gender privacy interests and rights,” Judge John L. Cordani wrote in a July 23 decision that knocked down the CHRO’s arguments for the second time in a year.

Cordani’s ruling came nine months after the CHRO’s first setback in its argument that state anti-discrimination laws contain no specific exclusion to allow for such a special accommodation for women at gyms.

“Women’s health and well being would be harmed, as many women would not exercise if forced into a co-ed environment and some would be forbidden to do so based on their religion,” such as the Muslim faith, wrote Michele Mount, the state’s chief human rights referee, in an October 2019 decision that rejected the CHRO’s case after a lengthy administrative hearing that began in 2018.

The taxpayer-funded CHRO has a considerable case backlog, which prompted the chief executive of one of the clubs being pursued to wonder why the agency continues to push the case after the two defeats.

“I have to believe that ... there’ve got to be a lot more pressing, important things than continuing to go after this issue,” Vincent Sansone, founder and president of The Edge Fitness Clubs, said in an interview Thursday at the club’s Manchester location.

CHRO’s reasoning

Here’s what Michael Roberts, the CHRO human rights attorney who has been pursuing the case, said about that in an email Friday:

“The CHRO is one of the oldest state-sponsored civil rights agencies in the nation. Our mission is to eliminate discrimination, in part through the enforcement of our state’s civil and human rights laws. We are not so far removed from a time when segregation in public spaces was a given.

“Connecticut’s public accommodations law was therefore enacted as a bulwark against that kind of invidious discrimination. It prohibits discrimination and segregation in places of public accommodation based on protected class, such as race, color, sex and lawful source of income, among others. There are only a few narrow exceptions, such as for bathrooms and locker rooms separated by sex. None of those exceptions applies here.”

“Edge Fitness has agreed that it is a place of public accommodation,” Roberts continued. “As a result, it has an obligation to obey the law. The CHRO’s position is that by maintaining a workout area to which individuals are denied access solely on the basis of their protected class, Edge Fitness is violating the law.

“The two rulings in the case so far have reached a contrary conclusion, applying a broad unwritten exception never before seen in Connecticut. We contend that these rulings were wrongly-decided, and have troubling implications far beyond this case alone. Recent

history has made clear how easily our hard-won civil rights protections can be eroded away, how exceptions can gradually swallow the rule. We are therefore pursuing our available avenues of appeal.

“Last year, the CHRO worked to help pass the Time’s Up Act in Connecticut, which expanded protections against workplace sexual harassment. Similar measures should be enacted for places of public accommodation. In the meantime, we encourage Edge Fitness and other places of public accommodation to develop policies and practices by which sexual harassment in their facilities may lawfully be prevented. Segregation based on protected class, however, is not among the lawful methods of prevention.”

While Roberts said that Mount and Cordani made the wrong decisions, Mount said last October that the CHRO, itself, “appears dismissive as to the concerns of women who have faced harassment and their resulting trauma, and ignores the real potential damage to women’s health by eliminating women’s exercise areas or the remedial purposes it provides.”

Women-only workout areas have become fairly common at fitness centers, but the current case grew out of complaints that the CHRO received in 2016 from two men in their 20s about the private areas for women at two particular gyms they patronized.

Alex Chaplin complained about Club Fitness, and Daniel Brels

ford filed his complaint against The Edge. Both chains have several locations in and outside Connecticut. Chaplin could not be reached, and Brelsford declined to comment.

‘Separate but equal’

When the CHRO’s case was rejected by Mount last October, it named itself as one of the defendants in the Superior Court appeal because Mount is part of the CHRO’s Office of Public Hearings. Arguments and counterclaims, in the both the administrative hearing and court case, grew heated at times.

For example, The Edge’s attorney, Jim Shea, in a July 2019 legal brief related to Mount’s administrative hearing, denounced the fact that Roberts and the CHRO compared women-only workout areas to the segregation-era “separate but equal” system of public restaurants, lodging and other facilities in this country.

Roberts had said in a brief two months earlier that “the Gym Defendants’ practice of maintaining a ’separate but equal’ area of their facilities is unlawful,” citing the landmark 1954 Brown v. Board of Education decision “in which the United States Supreme Court repudiated the long-held notion that separate can still be equal.”

“While that decision was concerned primarily with public education,” Roberts continued, “the holding and reasoning of the Court finds equal traction here: ’[I]n the field of [public accommodations] the doctrine of ’separate but equal’ has no place. Separate

[workout] facilities are inherently unequal.’”

Shea wrote in his brief that the “suggestion that the Edge has engaged in Jim Crow-era segregation ... is beyond the pale. Complainant and the CHRO have simply gone too far with this despicable claim.” He added that The Edge’s women-only areas “do not amount to the type of ‘separate but equal’ accommodation condemned in Brown.”

Roberts repeated the same “separate but equal” argument in the subsequent court case.

‘Men checking them out’

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 womenonly area were eliminated.

“The women really — they don’t just say, you know, I like privacy. They talk a lot about they want privacy from men checking them out,” she testified at a hearing before Mount.

Quinn added that the women said things like, “I feel more comfortable where I’m not being constantly looked at or judged or sometimes even being touched by male gym members.”

In his July 23 Superior Court rejection of the CHRO’s appeal, Cordani noted that in enacting anti-discrimination statutes, the General Assembly has “specifically recognized that gender privacy interests should prevail over the overarching sex based anti-discrimination provisions in the areas of separate sex bathrooms and locker rooms. Thus, the legislature has determined that, in recognition of existing gender privacy interests, it is permissible to discriminate in public accommodations based on sex by providing separate bathrooms and locker rooms for men and women.”

“Accordingly in these instances the legislature found that gender privacy interests were more important than promoting blanket anti-discrimination based on sex in these areas,” he wrote.

Although there’s no exclusion in the law that specifically allows women-only workout areas, the judge indicated that it’s reasonable to say the legislature intended this.

“[U]nless the statute is read to include a gender privacy exception similar to the [explicit one] for bathrooms and locker rooms, it would be a violation to provide separate showers, dressing rooms and hospital rooms for men and women in public accommodations,” Cordani wrote, adding that “the provision of separate showers, dressing rooms and hospital rooms for men and women has historically been essentially universal. Further, these separate women-only workout areas have been provided now for decades.”

If women “were deprived of the choice to exercise without men present, [they] would suffer from sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodations,” Cordani wrote. “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.”

The judge said that although anti-discrimination laws “protect both sexes equally,” they were originally included largely “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 the 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,” Cordani wrote.

He also said evidence and experience show that “women 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.”

Jon Lender is a reporter on The Courant’s investigative desk, with a focus on government and politics. Contact him at jlender@ courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@ jonlender.