From Main Justice Robinson’s feeling in Comm’n on Human Rts. & Opportunities v. Edge Health and fitness, LLC [UPDATE: link fixed]:
We conclude that the exceptions to the basic prohibition versus discrimination on the basis of intercourse in general public accommodations are limited to these expressly provided by the simple language of § 46a-64 and, thus, that there is no implied customer gender privacy exception to the statute.
Common Statutes § 46a-64 presents in pertinent section:
(a) It shall be a discriminatory follow in violation of this segment: (1) To deny any individual in the jurisdiction of this state comprehensive and equivalent accommodations in any spot of public lodging, resort or amusement simply because of race, creed, coloration, national origin, ancestry, sexual intercourse, gender identification or expression, marital standing, age, lawful source of income, mental disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or position as a veteran, of the applicant, subject only to the problems and restrictions recognized by legislation and relevant alike to all persons (2) to discriminate, segregate or separate on account of race, creed, color, countrywide origin, ancestry, intercourse, gender id or expression, marital position, age, lawful source of income, mental disability, mental incapacity, studying incapacity, physical disability, which includes, but not constrained to, blindness or deafness, or standing as a veteran ….
(b) (1) The provisions of this section with regard to the prohibition of sex discrimination shall not utilize to (A) the rental of sleeping lodging furnished by associations and organizations which rent all this kind of sleeping lodging on a short term or lasting basis for the distinctive use of people of the very same intercourse or (B) individual bogs or locker rooms based on sex….
Mainly because the women’s only work out areas do not tumble below an categorical exception, the defendants check with us to interpret § 46a-64 (b) (1) to involve a third, implicit exception to the prohibition towards intercourse dependent discrimination, particularly, a broad gender privateness exception. The defendants argue that these kinds of an exception is implied by the bodily privateness pursuits that the enumerated exceptions secure and that the inclusion of a 3rd exception would be regular with other portions of the statutory plan. The defendants even more rely on Typical Statutes § 46a-60 (b) (1), which provides for an exception to the general ban on sexual intercourse discrimination in work when sexual intercourse constitutes a bona fide occupational qualification (BFOQ) for a position. The defendants talk to us to read through the statutes in relation to a single a different and to conclude that the inclusion of the BFOQ defense in the context of work discrimination evidences a legislative intent to incorporate an implied gender privateness exception to the ban on discrimination in community accommodations. We disagree ….
It is effectively set up “that the legislature, in amending or enacting statutes, generally [is] presumed to have made a harmonious and constant human body of law ….” Declining to read through a BFOQ like exception into § 46a-64 (b) (1) does not render it inconsistent with § 46a-60 (b) (1). Experienced the legislature supposed to involve a third exception to the general ban on sexual intercourse primarily based discrimination in community accommodations, it could have finished so. In fact, the legislature’s inclusion of a BFOQ exception in § 46a-60 (b) (1) demonstrates that the legislature could have supplied these kinds of an exception in the public accommodation statute but consciously elected not to do so. As this court docket said a lot more than thirty yrs ago, “[a] review of our labor legislation discloses that our Normal Statutes deal with employment discrimination independently from community accommodation discrimination. We deem it particularly major that only the previous statute incorporates an specific exception for a ‘bona fide occupational qualification or need’ … [in concluding that] [o]ur general public accommodation statute … offers no indicator that it was intended to encompass the proffer of expert services within its definition of discriminatory lodging procedures. The absence of a statutory exception for a ‘bona fide occupational qualification or need’ in the textual content of [the public accommodation statute] is much more dependable with a legislative intent to depart these practices to be controlled by statutes that address work discrimination alternatively than by statutes directed to discrimination in public accommodations.”
In this vein, we address the argument of the defendants and interfaith amici see footnote 5 of this feeling that a summary that the statutory textual content plainly and unambiguously lacks a gender privacy exception will direct to absurd or bizarre benefits by doing away with other women’s only spaces and impeding the religious flexibility of women of all ages seeking to use those people services. They depend on the prediction of the referee and the trial court that, if the statute’s exceptions have been construed strictly, the provision of individual showers, dressing rooms, lactation rooms, domestic violence shelters, and healthcare facility rooms would constitute a violation of the statute. We disagree.
1st, even though these types of services are not at problem in this appeal, it is not at all crystal clear that they would not drop within the present statutory exceptions for loos, locker rooms, and sleeping lodging, as interpreted making use of our rules of statutory building. Second, even if we have been to suppose, without having deciding, that restricting the amenities identified by the referee and the demo court docket to ladies constitutes impermissible discrimination and that these types of a end result is certainly absurd, so permitting resort to the legislative background of § 46a-64 (b) (1), that legislative heritage does not support the defendants’ argument. Instead, it indicates that the legislature has rejected the idea of summary notions of gender privateness in favor of a a lot more narrowly cabined exception when warranted. [Details omitted. -EV]
We be aware that no constitutional declare has been lifted in this charm. So, we do not contemplate the implications that § 46a-64 could have in relation to constitutional provisions and statutory safeguards this kind of as the Connecticut Act Concerning Spiritual Flexibility. See Basic Statutes § 52-571b. We depart these thoughts, like any gloss necessary to help you save § 46a-64 (a) from constitutional jeopardy, for an additional day, in a scenario that squarely offers them. …
[W]e observe that a looking through of § 46b-64 (b) (1) to suggest a gender privateness exception, whilst presumably to benefit women, could also negatively affect the legal rights of ladies in a various way. As reviewed 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 Authorized Education and learning and Defense Fund, Inc., and the Connecticut Transadvocacy Coalition, these types of an exception could be invoked to exclude girls based mostly on the privateness pursuits of adult men and could justify discrimination against transgender people due to the fact some prospects, “owing to modesty, uncover it awkward” to be close to this kind of persons. Livingwell (North), Inc. v. Pennsylvania Human Relations Fee (Pa. Commw. Ct. 1992) (“The privacy fascination expressed involves cases [in which] the shoppers, because of to modesty, uncover it awkward to have the opposite intercourse current because of the actual physical condition in which they locate on their own or the bodily exercise in which they are engaged as buyers at the company entity. These consumers would be ashamed or humiliated if cared for or observed by associates of the opposite intercourse.”). These a end result of possibly limiting the entry of females and transgender people access to spaces on the basis of the privateness pursuits of males or the “ethical comfort” of buyers defeats the function of our state’s antidiscrimination legislation.
Even so, we admit that our assessment of the simple and unambiguous statutory text of § 46a-64 may well lead to a end result that could possibly perfectly have been unintended by the legislature, which includes with respect to its software in hypothetical situations involving lactation rooms or dressing rooms, as posited by the defendants, the referee, and the demo court docket. As the United States Supreme Court docket a short while ago noted in construing the language “simply because of intercourse” in Title VII of the Civil Rights Act of 1964 to utilize to work discrimination from homosexual or transgender persons, this outcome is not a motive to depart from the simple and unambiguous statutory text of § 46a-64….
As a result, the sensitivity of the willpower of wherever to restrict antidiscrimination protections, together with evolving modern day understandings of the terms “gender” and “intercourse,” renders this situation uniquely properly suited for thing to consider in the initial occasion by the legislature, which is the plan-producing department of our govt.
We consequently conclude that the defendants’ fitness centers are spots of community lodging that have denied the complainants whole and equal lodging on the basis of their sex….
As ideal I can notify, the difficulty has been litigated amazingly very little in other states—a Pennsylvania court docket read the condition general public lodging statutes to let women-only workout amenities, see Livingwell (North) Inc. v. Pa. Hum. Rels. Comm’n, 606 A.2d 1287 (Pa. Commw. Ct. 1992), and a Massachusetts court docket held the opposite, Foster v. Back again Bay Spas, Inc., 7 Mass. L. Rptr. 462 (Super. Ct. 1997) (final result afterwards modified by statute). (Some states, of study course, could well have statutory exceptions, or not ban intercourse discrimination in general public accommodations at all Title II of the federal Civil Rights Act, for instance, does not include sexual intercourse discrimination in community lodging.)