Is it legal for gyms to have women-only areas?
State Supreme Court will hear case questioning Connecticut’s long history of addressing gender, privacy and discrimination
The state Supreme Court has stepped into the increasingly confusing and politically volatile arena of sex and gender by agreeing to hear a women’s rights case that advocates say could change the direction of — or even undermine — Connecticut’s decadeslong march toward equality.
At first glance, the case looks like an argument about whether women should be allowed to have private, women-only exercise areas in gyms open, otherwise, to both men and women.
But it turns on the concept at the center of civil rights and the women’s movements. Must everyone be treated equally under the state’s progressive anti-discrimination laws? Or are some groups, in this case women, entitled to a little more in the way of rights than others, such as men, as compensation for historic discrimination or
to protect religious belief ?
Complicating the questions is the increasingly fluid definition of gender. When the court and the legislature outlawed sex-based discrimination four decades ago, it was presumed one was either a man or a woman. There is now a case in the Connecticut courts involving children born male, who declare themselves female and who want to compete in scholastic sports against girls.
Advocacy groups following the case predict that if the Supreme Court determines there is a gender-based right to privacy that exempts women from anti-discrimination law, other groups are certain to follow, threatening a chain reaction that could erode laws intended to ban discrimination against anyone in any public place or organization.
“If this Court were to affirm such an implied gender-based exception, it will create a substantial risk that it will be utilized in other contexts in ways that will predictably undermine the state’s nondiscrimination laws,” Hartford lawyer Kenneth J. Bartschi told the court on behalf of a coalition of groups representing gays, lesbians and transsexuals.
Segregation by sex
The court made an unusual call for interest groups to weigh in with friend-of-the-court arguments. Responses came from nearly two dozen organizations ranging from transgender people to rabbinical scholars. The arguments touch on subjects as scattered as female insecurity, male loutishness, spandex gym fashion, provocative exercise positions and faith-based proscriptions concerning female immodesty.
Illustrative of the disagreements over a case that has divided even the women’s movement is how it got to the Supreme Court: The state Commission on Human Rights and Opportunities sued itself.
It began when two disgruntled, male fitness buffs complained to the commission, independently, about having to wait in line to use exercise equipment in their crowded, co-ed gyms, while women had access to underused equipment in mostly empty, private space. The men argued that segregation by sex or any other classification is illegal under the state’s public accommodation law.
That law prohibits discrimination against anyone for any reason in any place open to the public, with two narrow exceptions — sleeping accommodations such as hospital rooms rented for the exclusive use of persons of the same sex, and separate bathrooms or locker rooms “based on sex.”
The men’s complaint went to a hearing before Human Rights Referee Michele C. Mount. Underpinning the hearing was expert testimony asserting that centuries of harassment have left women especially vulnerable to the kind of “objectification” the experts said women endure at the gym, through the leers and sexual remarks of men. The vulnerability is exacerbated by fashionable, if revealing exercise wear and the need to assume suggestive exercise positions, the experts said.
UConn social psychologist Diane M. Quinn testified that such leering and harassment at gyms can lead to consuming self-doubt among women.
Quinn said women tend to “freeze and think about their own appearance” when objectified by a man. She said the experience can lead to feelings of body shame and can “disrupt whatever they were thinking about or trying to do beforehand because suddenly now they’re thinking about what I look like and why the person is making this comment.” Such feelings can impair athletic ability and increase the risk of depression or development of eating disorders, she said.
In other testimony, Canadian anthropologist and sociologist Gillian Creese said men don’t experience objectification the same way as women, who “often curtail their physical activity in public spaces” as a result.
That creates the danger, both experts said, that women will abandon healthy exercise regimes if forced to work out beside men.
There also was evidence that the fitness clubs derive significant revenue from sales of memberships to women who wish to join co-ed gyms, but exercise away from men. The case so far has not considered the the subject of menor women-only gyms. The court has scheduled argument on May 5 at 11 a.m.
A right to gender privacy
At the conclusion of the hearing, Mount decided health clubs do not violate anti-discrimination law by excluding men from women only spaces. She based the decision on her conclusion that there is a third exception to the public accommodation law, one apparently not considered by the legislature — a right of women to gender privacy.
Gender privacy, Mount said, is compensation due women for the dignity lost to generations of sexual harassment and discrimination. She said such compensation is consistent with the intent of the public accommodation law, which was written as a remedy for just such past injustice.
The Commission on Human Rights and Opportunities appointed Mount to resolve the complaints by the male fitness buffs — and then disputed her conclusion. It takes a more traditional view of equal rights, privacy and discrimination, arguing that state law seeks equality for women, not preferential treatment — a position taken in the past by the National Organization for Women.
The commission appealed Mount’s decision to the Superior Court and lost.
Judge John L. Cordani agreed with Mount. He said that since the legislature decided separation of the sexes is appropriate in locker rooms, it follows that separation by sex in work-out areas is appropriate as well.
“Civil rights laws exist for the vindication and protection of human dignity,” Cordani wrote. “Thus, in interpreting those 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 goals are the preservation of human dignity, the protection of women, and the correction of historical discrimination against women.”
The same kinds of questions about gender, rights, past treatment and discrimination are cropping up elsewhere, in different contexts.
On the West Coast, Uber, Lyft and other ride-sharing start-ups are trying to figure out whether it is legal, or even politically correct, to require female only drivers for female customers as a means of protecting women from assault by male drivers. The city human rights commission in New York is trying to decide whether the women-only policy of The Wing, a co-working space for women, discriminates against men — and perhaps women who identify as another gender.
Religious freedom or discrimination?
The women’s movement, seldom reticent in its decadeslong equal rights movement, has been uncharacteristically quiet on the Connecticut case.
“One of the reasons no one wants to talk is that this is complicated,” said an executive of a Connecticut women’s advocacy group, on the condition she not be identified. “First of all, women have been pushing for equality, and that is arguably at odds with a decision giving them special rights. And it is further complicated if you overlay the increasingly complicated ideas about gender. In 1999, it was man and woman. Now it is far more nuanced.”
The National Organization for Women — both the national and local organizations — did not respond to repeated inquiries. Half a century ago, NOW took what, at least until recently, was the traditional position on sexual discrimination when it won a landmark, state Supreme Court decision in Evening Sentinel v. National Organization for Women. The court prohibited sex-based discrimination, saying separate but equal treatment of the sexes is illegal and ordered Connecticut newspapers to stop selling and publishing separate help wanted ads for men and women.
Among the two dozen or so interest groups that accepted the court’s invitation to opine on the case, religions of all faiths are lined up against a coalition of gay, lesbian and transgender people, students at Quinnipiac University’s law school and the local chapter of the American Civil Liberties Union.
The Interfaith religious group argues the case has more to do with religious freedom that discrimination. Judaism and Islam forbid women from exercising with men. By failing to recognize a gender-base exception to discrimination law, the religious groups argue the court would undermine the anti-discrimination law’s remedial purpose and harm one of the groups — women — it was supposed to protect.
“Those Jewish and Muslim women who adhere to traditional religious precepts of modesty are precluded from exercising in the presence of men, due to the provocative poses individuals must assume when exercising and the revealing, form-fitting nature of exercise attire,” Hartford attorneys Erick M. Sandler and Michael Karpman wrote for 10 religious organizations.
Groups on the other side argue that, should the court say women have a privacy right because men make them uncomfortable, it could push the state down a slippery slope that ends with increasing rather than decreasing discrimination. The gay, lesbian and transgender groups argued such a decision would once allow men to dust off the old argument about excluding women from male clubs. The ACLU, choosing a hypothetical at the other end of the spectrum, worried that it could give a toe hold to school boards trying to keep transgender students out of girls’ locker rooms.
What’s more, the ACLU argues, the rationale behind the Commission of Human Rights decision suggests women are responsible for their own harassment.
“The idea that the way to insulate women from harassment is to create women-only public accommodations — or that Connecticut law should encompass such an unstated exception — implicates women as the problem, suggesting that their very presence is too tempting for men to resist engaging in bad acts,” wrote Dan Barrett for the ACLU foundation of Connecticut.
In any event, the opponents said discomfort of some patrons is not a justification for discrimination, especially among “people exercising in a fitness facility in a group setting and in clothing of one’s own choice.”