“Women’s Only Workout Spaces” in Connecticut Public Accommodations Are Illegal

In Chief Justice Robinson’s opinion Comm’n Human Rts. & Opportunities v. Edge Fitness, LLC:

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. These defendants claim that this exception is implied in the bodily privacy rights that the enumerated exemptions protect, and that an inclusion of another exception would be compatible with other parts of the statutory system. 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. We are asked by the defendants to compare the statutes and conclude that inclusion of BFOQ defense within the context of employment discrimination indicates a legislative intention to add an implied gender privacy exemption to the prohibition on discrimination in public accommodations. We disagree ….

It’s well-established that “the legislature in amending and 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). It could have included a third exception in the ban on discrimination in public accommodation based on sexual orientation if the legislature had intended. 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. This court made this statement more than 30 years ago.[a]Our labor laws reveal that the General Statutes do not distinguish between employment and 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. In the text, there is no statutory exemption for an ‘bona fide occupational requirement or qualification’. [the public accommodation statute]This is consistent with the legislative intention to allow such practices to remain under control by laws that regulate employment discrimination, rather than those that target discrimination in public accommodation.

The argument of interfaith amici and defendants is addressed in this section. We conclude that the plain text of the statute does not include a gender privacy exception. This will cause absurd results as other women are denied access to these spaces, and restrict the religious freedoms of women who want to use them. The defendants rely on the conclusion of the trial court and referee that, if all exceptions to the statute were strictly interpreted, separate bathrooms, dressing rooms and lactation rooms for women in domestic violence shelters and hospitals would be considered a violation. We disagree.

First, even though such facilities aren’t at issue here, it is not clear whether they wouldn’t fall under the existing exceptions for toilets, locker rooms and sleeping accommodation, as we interpret 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. It indicates instead that the legislature rejected abstract concepts of gender privacy and has chosen to accept a narrowly-calibered exception whenever it is warranted. [Details omitted. -EV]

{We note that this appeal has not been heard on a constitutional issue. 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 menOne reason for discrimination against transgender customers is that they “dues to modesty” find being around these people uncomfortable. Livingwell, Inc. v. Pennsylvania Human Relations Commission (Pa. Commw.  Ct. 1992 [in which]Customers find that it is uncomfortable for them to have opposite sex because of their bodily condition or physical activities. If they were cared for and observed by the members of another sex , these customers could be humiliated or embarrassed. This would result in potentially restricting women’s and transgender customers’ access to places on the basis either of their privacy interests or “moral comfort”. It is contrary to the purposes of 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….

This is because the sensitive nature of the decision about where antidiscrimination protections should be limited, as well as the evolving understandings of “gender”, and “sex” make this topic a particularly good subject for the legislative, the policy-making branch 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. Rels. Comm’n, 606 A.2d 1287 (Pa. Commw. Ct. 1992), and the Massachusetts court held that it was not. Foster v. Back Bay Spas, Inc., 7 Mass. L. Rptr. 462 (Super. Ct. 1997) (result later changed by statute). Some states might have exceptions or ban sex discrimination at public accommodation. Title II of federal Civil Rights Act doesn’t address sex discrimination at public accommodations.