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Legal Update: Public Accommodations and “Gender Privacy" in Connecticut 

Posted by Michael J. Rose | Mar 29, 2021 | 0 Comments

We all know that as a general rule, establishments may not discriminate based on gender. Thus, the question arose: can gyms and other public facilities segregate spaces by gender and not run afoul of Connecticut's Public Accommodations Act? You may think not, but it depends on the legitimacy of the “gender privacy concern,” according to the Superior Court in a recent ruling in CHRO v. Edge Fitness, et al.

Connecticut's Public Accommodations Act (C.G.S. Ch. 46A), which prevents discrimination and segregation in the context of public spaces, includes two stated exceptions: same-sex sleeping accommodations and same-sex locker rooms and restrooms. In Edge Fitness, the Court identified other exceptions, and in this case allowed separate work out spaces for women to stand because it determined that the gender concerns were “legitimate.” While it is a reasonable conclusion, it could force legal challenges ahead.

When considering whether or not Edge Fitness could maintain separate, women-only workout areas, the Court found that the legislature, in drafting the Public Accommodations Act, sought to offer some protection to “gender privacy concerns” and did not strictly place a limit on exceptions. The CHRO argued otherwise, insisting that there could be no exceptions outside of the two narrow ones explicitly defined by the statute.

The Court, on review, disagreed and found that the separate workout spaces were an “important interest” and that their use qualified to protect “legitimate gender privacy concerns,” which could be exempted from the Act's general provisions. The Court found that although the legislature did not specifically carve out his exception, the gender privacy interests were “on par with the same interest that caused the legislature to specifically exempt bathrooms and locker rooms.” In other words, the Court found that similar interests qualified for protection despite their absence from the plain text of the statute.

What drove the Court's decision on legitimacy was the nature of the space itself: in the context of physical exercise, the Court observed that women may be subject to increased sexualization or body shaming. Thus, the same principles that applied to restrooms and locker rooms applied here: women had a compelling gender privacy concern in their use of the workout spaces that barred application of the Act and doing away with the space would ultimately inflict harm.

The Court indicated that religion, too, played a role in the decision as the most frequent users of the women-only work out spaces included Jewish and Muslim practitioners. The Court found that eliminating their access to those spaces by opening them up to all genders would disproportionately burden their use of public accommodations and was not the “least restrictive means” to resolve the CHRO's policy interest.

Business owners should be aware that, depending on the nature of the space and its use, separate spaces by gender—as exceptions to lodging and restrooms—may be found when the interest concerns strong gender privacy issues that overcome the limitations of the Public Accommodations Act. It is a complex question that requires a deep analysis.

The CHRO has continued to maintain that the decision goes against the Public Accommodations Act and filed an appeal with the Connecticut Appellate Court in September seeking direct review by the state Supreme Court.

If you have questions about segregated facilities by gender in your workplace and whether they comply with the Public Accommodations Act or might be a viable exception, please do not hesitate to contact the experienced team at Rose Kallor at 860.361.7999.

About the Author

Michael J. Rose

Managing Partner


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