Introduction
Pending at the Connecticut Supreme Court is a dispute between Connecticut’s Commission on Human Rights and Opportunities (“CHRO”) and the fitness club chains Edge Fitness, LLC, and Club Camel, Inc. (“the Gyms”), that raises issues of national significance regarding public accommodations, sex and gender discrimination, and religious freedom. In a brief filed in CHRO v. Edge Fitness, LLC, several religious organizations have defended the lower court’s remarkable religious freedom theory for upholding the Gyms’ practice of offering women-only exercise spaces. They contend that Connecticut’s Act Concerning Religious Freedom (“CACRF”)—the analogue of the federal Religious Freedom Restoration Act (“RFRA”)—compels an exception to Connecticut’s antidiscrimination statute to allow businesses like the Gyms to segregate customers by sex in order to accommodate a subset of customers whose religious beliefs favor the segregation of persons by sex under the banner of “modesty.” In other words, under their theory, government not only must grant antidiscrimination exemptions to accommodate businesses’ religious beliefs; it must also grant exemptions to accommodate nonreligious businesses’ own efforts to accommodate religious persons. Given the potential breadth of such religion-by-proxy claims, upholding the lower court’s religious freedom rationale would have significant implications for antidiscrimination law in Connecticut, as well as the many jurisdictions that share Connecticut’s tension between antidiscrimination statutes and religious freedom statutes like the CACRF.
I. The Legal Backdrop
Like many jurisdictions, Connecticut has both antidiscrimination statutes and a religious freedom statute. General Statutes § 46a-64(a) bars businesses classified as public accommodations from discriminating on the basis of several protected categories, including sex, gender, and gender identity. The only express exceptions are for bathrooms, locker rooms, and certain types of housing. And under the CACRF, General Statutes § 52-571b, the state may not “burden a person’s exercise of religion” unless the burden is the least restrictive means of furthering a compelling governmental interest. Section 52-571b further provides that “[a] person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding.”
By design, statutes like the CACRF create, in effect, individualized exemptions from otherwise-universal statutory schemes. Further, the United States Supreme Court has allowed corporations, not just natural persons, to benefit from those exemptions by professing a religious belief system at odds with statutory requirements. To the extent, then, that Connecticut courts continue to draw guidance from federal case law in interpreting the CACRF,1 it would come as no surprise for businesses like the Gyms to claim that the religious beliefs of their owners conflict with full compliance with antidiscrimination law. Quite different, however, would be a claim that the religious beliefs of some of a business’s customers conflict with the business’s full compliance with antidiscrimination law.
II. The Edge Fitness Case
The Gyms operate fitness clubs in Connecticut and designate separate women-only workout spaces in their gymnasiums. Spurred by the complaints of two male club members, the CHRO pursued a claim of sex discrimination under § 46a-64(a) against the Gyms, contending that physically segregating fitness club members by sex—outside the context of bathrooms and locker rooms—violated the statute. Unsuccessful at the administrative stage, the CHRO appealed to Connecticut Superior Court.
In Superior Court, the Gyms successfully argued that § 46a-64(a) should be read to include a broader “gender privacy” exception—i.e., to permit sex-specific spaces when different-sex strangers’ gaze might violate individuals’ sense of privacy and dignity. As detailed in the party and amici briefing in the Connecticut Supreme Court appeal, the “gender privacy” rationale raises a difficult set of questions, beyond the scope of this essay, about how to evaluate the impact of sex-segregated spaces on not only women but also marginalized groups such as the trans, intersex, and nonbinary communities.2
Strangely, though, the Superior Court went further. Citing no authority aside from the CACRF itself, the court sua sponte concluded that “the elimination of women only exercise areas will disparately impact women of Islamic and Judaic faiths and will burden their ability to exercise in public accommodations” and that “the record d[id] not reflect that elimination of women only exercise areas would be the least restrictive means of accomplishing” the antidiscrimination goals of § 46a-64(a). Referencing a “potential clash of rights,” the court concluded that § 52-571b weighed in favor of the Gyms’ claims—though the court left unclear the precise degree to which and manner in which § 52-571b influenced its ruling.
Confusingly, the Superior Court then summarily rejected the Gyms’ argument that the gender privacy of their customers justified a “bona fide occupational qualification” (“BFOQ”) defense to the antidiscrimination statute. Quite rightly, the court pointed out that a BFOQ “is a defense to certain discrimination in the employment context” and thus “has no application in the present case” (emphasis added). “We cannot allow customer preferences or prejudices, or purely business interests based on those customer preferences alone,” the court wrote, “to justify discrimination.” The court did not seem to appreciate that its ruling, in effect even if not in rhetoric, would allow precisely that. See infra Part III.
On appeal, the parties have fought principally over the “gender privacy” rationale, and the CHRO has urged the Connecticut Supreme Court to disregard the Superior Court’s religious freedom rationale. But several prominent religious groups, represented by one of Connecticut’s most elite law firms, are fighting to keep the religious freedom rationale in play.
On April 1, a coalition of religious groups, including the Jewish Federation of Greater Hartford, the Muslim Coalition of Connecticut, and the Hartford Roman Catholic Diocesan Corporation, filed an amicus brief urging the Supreme Court to uphold the lower court’s decision and endorse the notion that religious freedom justifies the women-only exercise spaces. Women “who adhere to traditional religious precepts of modesty,” they argue, “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.” And therefore, they say, “mechanical application of the literal language of [the antidiscrimination statute] would also place it into conflict with the [CACRF].”
III. The Profound Implications of the Edge Fitness Religious Freedom Rationale
All appear to agree that the case does not present a CACRF defense in the true sense; rather, the solicitude for religious freedom that the CACRF embodies, the argument goes, militates in favor of a carveout from § 46a-64(a), the antidiscrimination statute. The religious amici do not dispute that the Gyms failed to raise and preserve a CACRF defense, and, indeed, it is hard to imagine how they could have asserted such a claim anyway.3 Instead, the religious amici contend that they are merely citing the CACRF as relevant to the Court’s statutory interpretation of § 46a-64(a), not as a freestanding defense for the Gyms—a coherent, albeit hair-splitting, distinction. In any event, the same important questions remain: Who would be protected by the religious freedom claim? And what precisely would be protected? One could be forgiven for some confusion on those points after reading the briefs.
The Gyms would, of course, be the direct beneficiaries of the rule that the religious amici advocate, in that they could continue to run their clubs as they choose. But the Gyms do not claim to have any stake in the underlying debates over “privacy” and “modesty”; they merely want to accommodate their customers who have strong feelings on those debates. That is, the Gyms themselves have no aversion to mixed-sex spaces; rather, some of their customers have that aversion. If this sounds familiar, it should. It echoes the “customer preference” defenses that employers throughout the 1970s and 1980s attempted, usually unsuccessfully, to raise against sex discrimination claims in the employment context under Title VII—often to bar married women from flight attendant jobs.4 (“It’s not that we want to treat the sexes differently. It’s that our customers expect it.”)
To be sure, Edge Fitness implicates more than just ordinary “preferences.” While it purported to reject the Gyms’ BFOQ defense, the Superior Court adopted, in essence, the same reasoning that has undergirded successful BFOQ defenses in the employment context: namely, that there is something about customers’ “privacy” that sometimes justifies segregating people by sex.5 As scholars have pointed out, however, the success of the privacy BFOQ defense has been unpredictable, in part because of the problematic connections between notions of “privacy,” on the one hand, and societal stereotypes and categorizations of sex and gender, on the other.6
What difference, if any, should it make that the asserted “preference” here is based not on privacy per se but instead on another interest for which the law has special solicitude: religious freedom? Perhaps our solicitude for religious freedom should be greater than our solicitude for bodily privacy—though, of course, both receive significant protections under constitutional and statutory law. Or maybe it matters that religious objections to same-sex spaces based on “modesty” concerns are not directly based on sex stereotypes. While often originating with and perpetuating sex stereotypes, religious modesty norms are filtered through tradition and community identity.
But fundamentally, the “modesty” rationale has the same challenge as the “privacy” rationale. To accept it, one must conclude that government should privilege the preferences of privacy- or modesty-oriented individuals to allow what is ordinarily prohibited: businesses’ use of customers’ preferences as justification for treating employees—or, in this case, other customers—disparately on the basis of sex or gender. Such a conclusion should not be reached lightly. The slippery slope is all too obvious here: Should businesses of all types, absent a showing by the government that its antidiscrimination laws are the “least restrictive means,” be permitted to segregate employees or customers based on sex on the theory—which no doubt has a factual basis—that many religious groups would sincerely prefer greater segregation of the sexes (and more rigid categorization of sex and gender) in public life?
At a minimum, the answer should depend on some assessment of the nature of the “burden” on free exercise. If, as the religious amici contend, the CACRF should influence the interpretation of antidiscrimination law, then so too should the CACRF’s definition of a “burden.” Although case law defining “burdens” under the CACRF is sparse, one would expect it to mirror federal law at least to the point of excluding minor burdens.7 In the religious amici’s own words, Connecticut’s antidiscrimination laws “burden many Jewish and Muslim women’s exercise of religion by forcing them to choose between adhering to the tenets of their religion and accessing and benefitting from professional exercise facilities.” No prosecution, civil fine, deprivation of government benefits, or anything of the sort would result from a devout woman’s decision to avoid public, mixed-sex workout spaces. She would merely have to make different arrangements for her exercise. If that constitutes enough of a “burden” to override antidiscrimination law, it is difficult to imagine what wouldn’t. And while the male complainants’ grievance also concerns access to workout spaces, it would be a mistake to conflate their direct claim of explicit, categorical exclusion from public spaces on the basis of an inborn trait with the Gyms’ disparate-impact-by-proxy claim.
Further, the slippery slope could be avoided if courts simply await legislative judgment as to whether to create an exception for women-only workout spaces. In Massachusetts, for example, the appellate courts have not completely ruled out antidiscrimination exceptions based on customers’ religious beliefs—a possibility that the Edge Fitness case in neighboring Connecticut could reanimate. But because sex-segregated workout spaces are now explicitly authorized in Massachusetts by a narrow, targeted statutory exception, far less compelling is the argument that courts should adopt a hard-to-confine religious freedom rationale for allowing those and similar spaces to exist.8
Conclusion
Much more than women-only workout spaces are potentially at stake in the Edge Fitness case. Like so much current religious freedom litigation, the future of antidiscrimination law is on the line. Although the Connecticut Supreme Court has not allowed responses to the amicus briefs, one hopes the Justices will appreciate the profound implications of the religious freedom rationale advanced by the religious amici when they hear oral argument on May 5, 2021, and ultimately issue a ruling.
Richard Luedeman is an Assistant Clinical Professor of Law at University of Connecticut School of Law. Prior to teaching, Professor Luedeman worked in commercial and appellate litigation and clerked for judges of the U.S. Court of Appeals for the Second Circuit, U.S. Court of Appeals for the Third Circuit, and U.S. District Court for the District of Connecticut.
1 See Trinity Christian Sch. v. Comm’n on Hum. Rts. & Opportunities, 189 A.3d 79, 82 (Conn. 2018) (noting that the CACRF is modeled on the federal RFRA); Rweyemamu v. Comm’n on Hum. Rts. & Opportunities, 911 A.2d 319, 329 (Conn. App. 2006) (looking to U.S. Supreme Court precedent in interpreting the CACRF); Comm’n on Hum. Rts. & Opportunities v. Savin Rock Condo. Ass’n, Inc., 870 A.2d 457, 464 (Conn. 2005) (“In construing a Connecticut statute that is similar to federal law, we often turn to decisions construing the federal law for guidance.”).
2 See Brief of the Plaintiff-Appellant Commission on Human Rights & Opportunities at 14,Comm’n on Hum. Rts. & Opportunities v. Edge Fitness, No. SC20538 (Conn. Dec. 16, 2020); Brief of Amicus Curiae American Civil Liberties Union of Connecticut, Comm’n on Hum. Rts. & Opportunities v. Edge Fitness, No. SC20538 (Conn. Mar. 31, 2021); Brief of Amicus Curiae Quinnipiac University School of Law Legal Clinic, Comm’n on Hum. Rts. & Opportunities v. Edge Fitness, No. SC20538 (Conn. Apr. 1, 2021); Brief of Amici Curiae GLBTQ Legal Advocates & Defenders, Lambda Legal Education & Defense Fund, Inc., and Connecticut Transadvocacy Coalition, Comm’n on Hum. Rts. & Opportunities v. Edge Fitness, No. SC20538 (Conn. Apr. 1, 2021).
3 Crucially, the fitness clubs themselves have not asserted any Hobby Lobby-style claim that the women-only spaces are an expression of their own religious principles. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 700–705 (2014). Ordinarily, one would expect that fact to be dispositive since the CACRF provides only that the “person whose exercise of religion has been burdened” may “assert that violation as a claim or defense in a judicial proceeding.” Conn. Gen. Stat. § 52-571b(c) (emphasis added). Neither the religious amici nor any of the religious women whose interests they purport to represent are party to this judicial proceeding.
4 See, e.g., Katie Manley, The Bfoq Defense: Title VII’s Concession to Gender Discrimination, 16 Duke J. Gender L. & Pol’y 169, 184 (2009) (“Th[e] prohibition against BFOQ defenses based upon customer preference is well established.”); Equal Emp. Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 587 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020); Bradley v. Pizzaco of Neb., Inc., 7 F.3d 795, 799 (8th Cir. 1993) (“Even if the survey results indicated a significant customer apprehension regarding beards, which they do not, the results would not constitute evidence of a sufficient business justification defense for Domino’s strict no-beard policy. Although this Circuit has not directly addressed customer preference as a business justification for policies having a disparate impact on a protected class, cases from other circuits have not looked favorably on this kind of evidence.”); Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602, 609 (9th Cir. 1982) (“[G]ender-based discrimination cannot be upheld on the basis of customer preferences unrelated to abilities to perform the job.”); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (rejecting theory that “customer preferences rise to the dignity of a bona fide occupational qualification if no customer will do business with a member of one sex either because it would destroy the essence of the business or would create serious safety and efficacy problems”); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (“[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid.”), cited with approval, Evening Sentinel v. Nat’l Org. for Women, 357 A.2d 498, 505 (Conn. 1975).
5 See, e.g., Elsa M. Shartsis, Privacy As Rationale for the Sex-Based Bfoq, 1985 Det. C.L. Rev. 865, 879–85 (1985) (describing the success of “privacy” BFOQ claims to justify barring male nurses from hospital positions); Backus v. Baptist Med. Ctr., 510 F. Supp. 1191, 1194 (E.D. Ark. 1981) (“Whereas a ‘customer preference’ will not justify a job qualification based on sex, an invasion of privacy will.”).
6 See Manley, supra note 4, at 188 (describing the inconsistent treatment of the defense); id. at 190 (“[M]any privacy concerns are the result of gender stereotypes . . . . Men are often stereotyped as sexually motivated, having ‘one-track minds‘ that cannot stop them from ogling the naked female body.”); Amy Kapczynski, Same-Sex Privacy and the Limits of Antidiscrimination Law, 112 Yale L.J. 1257, 1269 (2003) (“Once one begins to ask why it is less private to be seen in a state of undress by one sex rather than the other, the foundational logic of the same-sex privacy cases rapidly breaks down. The fact is, in no other realm of law does the ‘privacy’ of an act depend upon not just who sees which body under what conditions, but also upon what sex the viewer is.”).
7 Unlike the federal RFRA, the CACRF does not refer to “substantial” burdens, but the difference in wording appears to have little bite. See Cambodian Buddhist Soc. of Conn., Inc. v. Plan. & Zoning Comm’n, 941 A.2d 868, 894 (Conn. 2008) (concluding that the CACRF is no more protective as to land usage than federal law); Rweyemamu v. Comm’n on Hum. Rts. & Opportunities, 911 A.2d 319, 327 (Conn. App. 2006) (referencing the “substantially burden” standard in the CACRF context); see also Perrier-Bilbo v. United States, 954 F.3d 413, 432 (1st Cir. 2020) (“[N]ot every imposition or inconvenience rises to the level of a ‘substantial burden.’”); Fortress Bible Church v. Feiner, 694 F.3d 208, 219 (2d Cir. 2012) (“The burden must have more than a minimal impact on religious exercise, and there must be a close nexus between the two.”).
8 See Foster v. Back Bay Spas, Inc., No. 96-7060, 1997 WL 634354, at 4 (Mass. Super. Oct. 1, 1997) (declining to allow women-only workout spaces to accommodate Muslim fitness club members); An Act Relative to the Membership of Fitness and Wellness Facilities in the Commonwealth*, 1998 Mass. Acts 10 (amending antidiscrimination statute to allow sex-segregated fitness facilities).