Hartford Courant (Sunday)

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

- By Edmund H. Mahony

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.”

 ?? KASSI JACKSON/ HARTFORD COURANT ?? Kettlebell­s and other items at The Edge Fitness Club in West Hartford in June.
KASSI JACKSON/ HARTFORD COURANT Kettlebell­s and other items at The Edge Fitness Club in West Hartford in June.
 ?? JON LENDER/HARTFORD COURANT ?? Vincent Sansone, founder and president of The Edge Fitness Clubs, by the doorway into the women-only workout area at the Edge’s Manchester location.
JON LENDER/HARTFORD COURANT Vincent Sansone, founder and president of The Edge Fitness Clubs, by the doorway into the women-only workout area at the Edge’s Manchester location.

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