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Are women-only gym sections discriminatory? Connecticut Supreme Court to rule on a weighty issue

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
Authors
Johanna G. Zelman
Partner - United States
FordHarrison LLP
Michael P. Lewis
FordHarrison LLP
United States
03.05.21
4
A legal action claiming the existence of ‘women-only’ sections at two gyms is illegal sex discrimination has reached the Connecticut Supreme Court. This article sets out the issues and the possible impact on employers.
Executive summary

For decades fitness facilities have been offering women-only sections, allowing women to exercise in private without self-image worries or unwanted male attention. But these sections are now in jeopardy as the Connecticut Commission on Human Rights & Opportunities (CHRO) brings a case against two prominent Connecticut gyms, Edge Fitness and Club Fitness, to the Connecticut Supreme Court, asserting that these sections amount to illegal sex discrimination against men. This is an issue of first impression’, meaning it is the first time the issue has been considered by the court. 

The CHRO has been pleading this case, originally brought to them by two men in their mid-20s, for several years now. The CHRO maintains that these women-only sections discriminate against men in violation of Connecticut’s public accommodations law (Conn. Gen. Stat. s46a-64), which prohibits discrimination and segregation in places of public accommodation based on, among other things, sex. Although the law carries exceptions for bathrooms and locker rooms, the CHRO maintains that these exceptions do not apply here. Rather, according to the CHRO, these women-only workout areas are equivalent to segregation-era separate but equal systems of public schools, restaurants, lodging, and other facilities, which the United States Supreme Court renounced as discriminatory in Brown v. Board of Education. 

But the CHRO has been rebuffed twice thus far, first by the CHRO’s own Office of Public Hearing and second on appeal to the Connecticut Superior Court, both holding that barring gyms from providing women-only sections would harm women. 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 Muslim and certain Jewish women, whose faith prohibits them from exercising with men, ruled the state’s chief human rights referee in a 2018 administrative hearing. 

In reaching its conclusion, the Hearing Officer relied on the testimony of expert witness, Dr. Diane Quinn, a University of Connecticut Professor, who surveyed approximately half of Edge Fitness’ women patrons, which revealed that women at those clubs prefer private areas for several reasons, including avoiding being sexualised, objectified and judged by men. Most women reported feeling body-shamed and self-conscious when forced to work out alongside men, which impedes their athletic performance and discourages them from exercising. Dr. Quinn noted that these are not issues men experienced. Most noteworthy, 62% of women indicated they would consider cancelling their membership if the women-only area is eliminated. 

The Connecticut Superior Court rejected the CHRO’s appeal in July of 2020, holding that Connecticut’s public accommodation statute specifically recognises that gender privacy interests are not discriminatory. Although the statute itself only specifically recognises separate gender bathrooms and locker rooms, the legislature’s findings in enacting the law included that gender privacy interests are more important than promoting blanket anti-discrimination based on sex in some situations. Based on legislative intent, the Superior Court found that it is reasonable to suggest that the legislature intended to permit sex-separated facilities in situations other than bathrooms and locker rooms where privacy interests were at issue, including sex-separated workout areas. As articulated by the Superior Court, if women were deprived of their choice to exercise privately, they would suffer from 

sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodation… thus, it appears that gender privacy interest here is on par with the same interest that caused the legislature to specifically exempt bathrooms and locker room. 

The Connecticut Supreme Court is set to hear oral argument on May 2021. Amicus briefs have been filed in support of both positions. Supporting the gyms are the Jewish Federation of Greater Hartford, the Muslim Coalition of Connecticut, and several other religious organisations, while the American Civil Liberties Union, GLBTQ Legal Advocates & Defenders, and Quinnipiac University School of Law Legal Clinic have filed briefs on behalf of the CHRO. 

Bottom line

Eyes are on the Connecticut Supreme Court to resolve the clearly competing interests at stake: laws banning separate but equal facilities, and the compelling interest of women to use fitness and other facilities without the fear of being objectified by men. This ruling, albeit under a public accommodation statute, could have a significant impact on employers still reckoning with the #metoo movement and the gender-pay gap. A ruling in favour of the CHRO’s position could reflect negatively overall on women’s rights in the workplace. For example, a ruling in favour of the CHRO’s position could lend credence to an argument that an employer’s diversity and inclusion programme designed to promote women’s rights in an effort to remedy past and continued sex discrimination interferes with men’s rights.