Commission on Human Rights & Opportunities v. Edge Fitness, LLC ( 2022 )

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COMMISSION ON HUMAN RIGHTS AND
OPPORTUNITIES v. EDGE
FITNESS, LLC, ET AL.
(SC 20538)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to the Public Accommodation Act (§ 46a-64 (a)), ‘‘[i]t shall be a
discriminatory practice . . . [t]o deny any person within the jurisdiction
of this state full and equal accommodations in any place of public
accommodation . . . because of . . . sex . . . [or] to discriminate,
segregate or separate on account of . . . sex . . . .’’
Pursuant further to that act (§ 46a-64 (b) (1)), the provisions of § 46a-64
prohibiting sex discrimination ‘‘shall not apply to . . . separate bath-
rooms or locker rooms based on sex.’’
The plaintiff, the Commission on Human Rights and Opportunities, appealed
to the trial court from the decision of the commission’s human rights
referee, who found that the defendants, E Co. and C Co., had not engaged
in discriminatory public accommodations practices by providing sepa-
rate women’s only workout areas in their otherwise public fitness facili-
ties. The complainants, two members of the defendants’ respective gyms
who both identified as male, filed complaints with the commission after
they experienced delays in completing their workouts because they had
to wait for other members to finish using the equipment in the coed
portions of the facilities. The human rights referee concluded that the
defendants did not violate § 46a-64 by maintaining women’s only work-
out areas and dismissed their complaints. On appeal to the trial court,
that court recognized that a women’s only workout area is neither a
bathroom nor a locker room but nonetheless concluded that the defen-
dants’ provision of such areas did not violate the sex discrimination
provisions of the Public Accommodation Act because there was an
implied customer gender privacy exception encompassed within § 46a-
64 (b) (1). In so concluding, the court considered the privacy interests
underlying the bathroom and locker room exceptions, as well as the
burden that the elimination of women’s only areas would place on
women of certain religious practices. The trial court observed that,
without an implied gender privacy exception, the provision of other
types of separate facilities, such as showers, dressing rooms and hospital
rooms, would constitute a violation of the act. Accordingly, the court
rendered judgment dismissing the commission’s administrative appeal,
from which the commission appealed. Held that the trial court incor-
rectly concluded that § 46a-64 (b) (1) contains an implied gender privacy
exception that exempted the defendants’ provision of women’s only
workout areas from the act’s general prohibition against sex discrimina-
tion, and, accordingly, this court reversed the trial court’s judgment and
remanded the case with direction to render judgment sustaining the
commission’s administrative appeal: it was undisputed that the defen-
dants’ gyms are places of public accommodation and that their provision
of women’s only workout areas constitutes a discriminatory practice
under the act unless subject to a statutory exception, and, because
women’s only workout areas did not fit within the plain meaning of the
terms ‘‘bathroom’’ or ‘‘locker room,’’ as gleaned from their dictionary
definitions, this court concluded that the exceptions set forth in § 46a-
64 (b) (1) plainly and unambiguously did not encompass women’s only
workout areas; moreover, if the legislature had intended to include an
additional exception to the act’s general ban on sex based discrimination
in public accommodations, it could have done so, as it did in the statute
(§ 46a-60 (b) (1)) providing for an exception to the general ban on sex
discrimination when sex constitutes a bona fide occupational qualifica-
tion for a position of employment, and interpreting § 46a-64 (b) (1) to
include an implied gender privacy exception would be inconsistent with
the maxim that remedial statutes, like the act, should be construed
liberally but that exceptions to remedial statutes should be construed
narrowly; furthermore, the legislative history indicated that the legisla-
ture had rejected a version of the act that exempted the provision of
separate facilities for males and females ‘‘based on considerations of
privacy and modesty’’ as being too broad and subjective, instead adopt-
ing the cabined exception limited to ‘‘separate bathrooms or locker
rooms based on sex’’; in addition, the fact that this court’s construction
of § 46a-64 may lead to results unintended by the legislature, as posited
by the parties, the referee and the trial court with respect to lactation
and dressing rooms, was not a reason to depart from the plain and
unambiguous statutory text of the statute, and the sensitivity of the
determination of where to limit antidiscrimination protections on the
basis of sex rendered the issue uniquely well suited for consideration
in the first instance by the legislature.
Argued May 5, 2021—officially released January 25, 2022*
Procedural History
Appeal from the decision of the plaintiff that the
named defendant and the defendant Club Camel, Inc.,
Bloomfield, did not engage in discriminatory public
accommodations practices, brought to the Superior
Court in the judicial district of New Britain, where the
case was tried to the court, Cordani, J.; judgment dis-
missing the appeal, from which the plaintiff appealed.
Reversed; judgment directed.
Michael E. Roberts, human rights attorney, for the
appellant (plaintiff).
James F. Shea, with whom was Allison P. Dearing-
ton, for the appellee (named defendant).
Mario R. Borelli, for the appellee (defendant Club
Camel, Inc., Bloomfield).
Kenneth J. Bartschi filed a brief for the GLBTQ Legal
Advocates & Defenders et al. as amici curiae.
Kevin M. Barry filed a brief for the Quinnipiac Uni-
versity School of Law Legal Clinic as amicus curiae.
Erick M. Sandler filed a brief for the Jewish Federa-
tion of Greater Hartford et al. as amici curiae.
Dan Barrett filed a brief for the American Civil Liber-
ties Union of Connecticut as amicus curiae.
Opinion
ROBINSON, C. J. This appeal presents a significant
question of first impression with respect to whether
the Public Accommodation Act, General Statutes § 46a-
64,1 contains an implied customer gender privacy excep-
tion to its general prohibition against sex based discrim-
ination.2 The plaintiff, the Commission on Human Rights
and Opportunities (commission), appeals3 from the
judgment of the trial court dismissing its administrative
appeal from the decision of the commission’s human
rights referee (referee), who found that the defendants
Edge Fitness, LLC (Edge Fitness) and Club Camel, Inc.,
Bloomfield, doing business as Club Fitness (Club Fit-
ness),4 did not engage in discriminatory public accom-
modations practices. On appeal, the commission claims
that the trial court incorrectly concluded that women’s
only workout areas in otherwise public gyms did not
violate § 46a-64 because that statute contains an implied
customer gender privacy exception. We conclude that
the exceptions to the general prohibition against dis-
crimination on the basis of sex in public accommoda-
tions 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. Accordingly, we reverse the judgment of the
trial court.
The record reveals the following undisputed facts
and procedural history. The complainants, Alex Chaplin
and Daniel Brelsford, were members of the defendants’
gyms, Club Fitness and Edge Fitness, respectively. Both
individuals identify as males and used the larger coed
portions of the facilities. While using equipment in the
main workout areas, the complainants experienced
slight delays in completing their workouts because they
had to wait for other members to finish using that equip-
ment. This led the complainants to believe that the
defendants, by providing separate women’s only fitness
areas in their facilities, had discriminated against them
on the basis of sex, and they filed complaints with
the commission challenging the practice. The referee
concluded that the defendants did not violate § 46a-
64 by maintaining women’s only workout areas and
dismissed the complaints.
The commission filed an administrative appeal from
the decision of the referee with the trial court pursuant
to General Statutes § 4-183. In its memorandum of deci-
sion, the trial court first recognized that a women’s only
fitness area is neither a bathroom nor a locker room.
The court then questioned whether ‘‘§ 46a-64 (b) (1)
allow[s] for exceptions to the sex based antidiscrimina-
tion prohibitions in cases other than bathrooms or
locker rooms [in which] the same gender privacy inter-
ests that allowed for the exceptions for bathrooms and
locker rooms are in play.’’ The trial court observed that,
‘‘unless the statute is read to include a gender privacy
exception similar to the express exception for bath-
rooms and locker rooms, it would be a violation to
provide separate showers, dressing rooms and hospital
rooms for men and women in public accommodations.’’
The trial court further considered the burden that the
elimination of women’s only workout areas would place
on women of certain religious practices. The trial court,
therefore, concluded that ‘‘the provision of women’s
only exercise areas in fitness centers of public accom-
modation does not violate the sex based antidiscrimina-
tion provisions of . . . § 46a-64.’’ Accordingly, the trial
court rendered judgment dismissing the commission’s
administrative appeal. This appeal followed.5 See foot-
note 3 of this opinion.
On appeal, the commission claims that the language
of § 46a-64 (b) (1) is plain and unambiguous and does
not contain a gender privacy exception to the general
prohibition against sex discrimination. The commission
asserts that a gender privacy exception is not a valid
defense to an otherwise discriminatory sex based classi-
fication.6 In response, the defendants argue that, because
antidiscrimination statutes are to be construed broadly
to effectuate their beneficent purpose, the remedial pur-
pose of § 46a-64 is advanced by the defendants’ provi-
sion of women’s only workout areas. The defendants
also contend that the commission’s reading of the stat-
ute is so narrow that it would yield absurd results. We
agree with the commission and conclude that the trial
court’s expansion of the exceptions in § 46a-64 (b) (1)
to the general prohibition against sex discrimination
was inconsistent with the plain language of the statute.
Whether the trial court correctly determined that
there is an implied customer gender privacy exception
encompassed within § 46a-64 (b) (1) is a question of
statutory construction that presents a question of law,
over which we exercise plenary review. See, e.g., Bois-
vert v. Gavis, 332 Conn. 115, 141, 210 A.3d 1 (2019). It
is well settled that we follow the plain meaning rule
in General Statutes § 1-2z in construing statutes ‘‘to
ascertain and give effect to the apparent intent of the
legislature.’’ (Internal quotation marks omitted.) Sena
v. American Medical Response of Connecticut, Inc.,
333 Conn. 30, 45, 213 A.3d 1110 (2019); see, e.g., id.,45–46 (setting forth plain meaning rule).
In interpreting statutes, words and phrases not other-
wise defined by the statutory scheme are construed
according to their ‘‘commonly approved usage . . . .’’
General Statutes § 1-1 (a); see, e.g., State v. Panek, 328
Conn. 219, 227–28, 177 A.3d 1113 (2018). In determining
the commonly approved usage of the statutory language
at issue, we consult dictionary definitions. See, e.g., id.,
229. It is well established that a statute is considered
plain and unambiguous when ‘‘the meaning . . . is so
strongly indicated or suggested by the [statutory] lan-
guage . . . that . . . it appears to be the meaning and
appears to preclude any other likely meaning. . . . [I]f
the text of the statute at issue . . . would permit more
than one likely or plausible meaning, its meaning cannot
be said to be plain and unambiguous.’’ (Emphasis in
original; internal quotation marks omitted.) Ledyard v.
WMS Gaming, Inc., 338 Conn. 687, 698 n.6, 258 A.3d
1268 (2021).
As required by § 1-2z, we first determine whether
the statutory language is ambiguous. Section 46a-64 (a)
provides in relevant part that it ‘‘shall be a discrimina-
tory practice in violation of this section: (1) [t]o deny
any person within the jurisdiction of this state full and
equal accommodations in any place of public accommo-
dation, resort or amusement because of . . . sex . . .
[or] (2) to discriminate, segregate or separate on
account of . . . sex . . . .’’ Section 46a-64 (b) (1) then
sets forth the exceptions to the statute’s general prohibi-
tion against discrimination based on sex, which it limits
to ‘‘the rental of sleeping accommodations provided
by associates 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 . . . separate bathrooms or locker rooms based on
sex.’’ See footnote 1 of this opinion.
It is undisputed that the defendants’ gyms are
‘‘place[s] of public accommodation’’ within the meaning
of § 46a-64 (a) (1). It is also undisputed that the defen-
dants’ provision of women’s only workout areas consti-
tutes a ‘‘discriminatory practice’’7 in violation of that
subsection unless it is subject to a statutory exception,
which is the focus of our analysis in this appeal.
The legislature enacted the bathroom and locker
room exceptions set forth in § 46a-64 (b) (1) as No.
94-238, § 4, of the 1994 Public Acts (P.A. 94-238). In
determining the commonly approved usage of the terms
‘‘bathroom’’ and ‘‘locker room,’’ we look to their diction-
ary definitions. See, e.g., State v. Panek, supra, 328
Conn. 229. Contemporary to the passage of the 1994
amendment to § 46a-64, ‘‘bathroom’’ was defined as ‘‘a
room equipped for taking a bath or shower . . . toilet
. . . .’’ Random House Unabridged Dictionary (2d Ed.
1993) p. 177. ‘‘Locker room’’ was defined as ‘‘a room
containing lockers, as in a gymnasium, factory, or
school, for changing clothes and for the storage and
safekeeping of personal belongings.’’ Id., p. 1128. The
parties do not proffer alternative meanings for these
terms or suggest that the women’s only workout areas
fit within the plain meaning of those definitions as a
factual matter.8 Accordingly, we conclude that the
exceptions set forth in § 46a-64 (b) (1) plainly and unam-
biguously do not encompass the women’s only workout
areas for purposes of the § 1-2z analysis.
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 discrimi-
nation, namely, a broad gender privacy exception. The
defendants argue that such an exception is implied by
the bodily privacy interests that the enumerated excep-
tions protect and that the inclusion of a third exception
would be consistent with other portions of the statutory
scheme. The defendants further rely on General Stat-
utes § 46a-60 (b) (1),9 which provides for an exception
to the general ban on sex discrimination in employment
when sex constitutes a bona fide occupational qualifica-
tion (BFOQ) for a position. The defendants ask us to
read the statutes in relation to one another and to con-
clude that the inclusion of the BFOQ defense in the
context of employment discrimination evidences a leg-
islative intent to include an implied gender privacy
exception to the ban on discrimination in public accom-
modations. We disagree with this reading of § 46a-64
(b) (1).
It is well established ‘‘that the legislature, in amending
or enacting statutes, always [is] presumed to have cre-
ated a harmonious and consistent body of law . . . .’’
(Internal quotation marks omitted.) State v. Courch-
esne, 296 Conn. 622, 709, 998 A.2d 1 (2010). Declining
to read a BFOQ like exception into § 46a-64 (b) (1) does
not render it inconsistent with § 46a-60 (b) (1). Had the
legislature intended to include a third exception to the
general ban on sex based discrimination in public accom-
modations, it could have done so. Indeed, the legisla-
ture’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. See, e.g., DeNun-
zio v. DeNunzio, 320 Conn. 178, 194, 128 A.3d 901 (2016)
(common principle of statutory construction is that,
when legislature expresses list of items, exclusion of
particular item is deliberate); Stafford v. Roadway, 312
Conn. 184, 194, 93 A.3d 1058 (2014) (‘‘[i]t is a well settled
principle of statutory construction that the legislature
knows how to convey its intent expressly . . . or to
use broader or limiting terms when it chooses to do
so’’ (citation omitted; internal quotation marks omit-
ted)). As this court stated more than thirty years ago,
‘‘[a] review of our labor legislation discloses that our
General Statutes treat employment discrimination sepa-
rately from public accommodation discrimination. We
deem it especially significant that only the former stat-
ute contains an express exception for a ‘bona fide occu-
pational qualification or need’ . . . [in concluding that]
[o]ur public accommodation statute . . . gives no indi-
cation that it was intended to encompass the proffer
of services within its definition of discriminatory
accommodation practices. The absence of a statutory
exception for a ‘bona fide occupational qualification or
need’ in the text of [the public accommodation statute]
is more consistent with a legislative intent to leave
such practices to be regulated by statutes that address
employment discrimination rather than by statutes
directed to discrimination in public accommodations.’’
(Citations omitted.) Quinnipiac Council, Boy Scouts
of America, Inc. v. Commission on Human Rights &
Opportunities, 204 Conn. 287, 302, 528 A.2d 352 (1987);
see id., 302–303 (denying woman opportunity to serve
as scoutmaster of Boy Scout troop did not deprive her
of ‘‘accommodation’’ on basis of sex).
Declining to import a gender privacy exception into
§ 46a-64 is consistent with the maxim that ‘‘remedial
statutes should be construed liberally in favor of those
whom the law is intended to protect,’’ but exceptions
to those statutes ‘‘should be construed narrowly.’’
(Internal quotation marks omitted.) Fairchild Heights,
Inc. v. Dickal, 305 Conn. 488, 502, 45 A.3d 627 (2012);
see Thibodeau v. Design Group One Architects, LLC,
260 Conn. 691, 715, 802 A.2d 731 (2002) (‘‘recogniz[ing]
the balance that the legislature has struck between the
state’s dual interest’’ in broadly prohibiting sex discrimi-
nation and narrowly exempting small employers); Gay
& Lesbian Law Students Assn. v. Board of Trustees,
236 Conn. 453, 473–74, 673 A.2d 484 (1996) (‘‘provisos
and exceptions to statutes are to be strictly construed
with doubts resolved in favor of the general rule rather
than the exception and . . . those who claim the bene-
fit of an exception under a statute have the burden of
proving that they come within the limited class for
whose benefit it was established’’ (internal quotation
marks omitted)). Particular caution is warranted in the
construction of exceptions to antidiscrimination laws
because a broad construction poses the risk of swal-
lowing the rule. See, e.g., Commission on Human
Rights & Opportunities v. Sullivan Associates, 250
Conn. 763, 788–89, 739 A.2d 238 (1999) (concluding that
‘‘ ‘insufficient income’ ’’ exception to Fair Housing Act
under General Statutes § 46a-64c (b) (5) does not cate-
gorically exclude tenants receiving section 8 assistance
but, instead, receives ‘‘[a] narrow construction . . .
[that] affords a landlord an opportunity to determine
whether, presumably for reasons extrinsic to the sec-
tion 8 housing assistance calculations, a potential ten-
ant lacks sufficient income to give the landlord reason-
able assurance that the tenant’s portion of the stipulated
rental will be paid promptly and that the tenant will
undertake to meet the other obligations implied in the
tenancy’’).
In this vein, we address the argument of the defen-
dants and interfaith amici; see footnote 5 of this opinion;
that a conclusion that the statutory text plainly and
unambiguously lacks a gender privacy exception will
lead to absurd or bizarre results by eliminating other
women’s only spaces and impeding the religious free-
dom of women seeking to use those facilities.10 They
rely on the prediction of the referee and the trial court
that, if the statute’s exceptions were construed strictly,
the provision of separate showers, dressing rooms, lac-
tation rooms, domestic violence shelters, and hospital
rooms would constitute a violation of the statute. We
disagree. First, although such facilities are not at issue
in this appeal, it is not at all clear that they would not fall
within the existing statutory exceptions for bathrooms,
locker rooms, and sleeping accommodations, as inter-
preted using our rules of statutory construction. See
General Statutes § 46a-64 (b) (1) and (2). 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,11 thus permitting
resort to the legislative history of § 46a-64 (b) (1), that
legislative history does not support the defendants’ argu-
ment. See, e.g., State v. Bischoff, 337 Conn. 739, 746,
258 A.3d 14 (2021) (‘‘[o]nly if we determine that the
statute is not plain and unambiguous or yields absurd
or unworkable results may we consider extratextual
evidence of its meaning such as the legislative history
and circumstances surrounding its enactment’’ (internal
quotation marks omitted)). Instead, it indicates that the
legislature has rejected the concept of abstract notions
of gender privacy in favor of a more narrowly cabined
exception when warranted.
As we noted previously, the bathroom and locker
room exception in § 46a-64 (b) (1) was enacted in 1994
as § 4 of P.A. 94-238, which was first introduced as
Substitute House Bill No. 5606. In his written testimony
before the Judiciary Committee in support of Substitute
House Bill No. 5606,12 then Attorney General Richard
Blumenthal described the bill as intended to ‘‘clarif[y]
that the prohibition against discrimination based on sex
does not mean that places of public accommodations
such as gyms, bars, and restaurants cannot provide
separate bathroom and locker room facilities. Although
this is common sense, it is not clear that such an
exception exists in the current statute.’’ (Emphasis
added.) Written testimony from Richard Blumenthal,
Attorney General, submitted to the Joint Committee on
Judiciary, Connecticut General Assembly (March 11,
1994);13 see 37 H.R. Proc., Pt. 20, 1994 Sess., p. 7240,
remarks of Representative Richard D. Tulisano (‘‘this
section . . . makes it clear that it’s not illegal under
the public accommodations act to have separate bath-
rooms in locker rooms for men and women’’). The origi-
nally raised House Bill No. 5606 was expressly intended
to allow ‘‘the provision of separate facilities for males
and females where privacy concerns exist’’; it would
have exempted from the act ‘‘the provision of bathroom
and locker room facilities based on considerations of
privacy and modesty.’’ (Emphasis added.) Raised Bill
No. 5606, 1994 Sess., § 1. During testimony on House Bill
No. 5606 before the Judiciary Committee, Commission
Counsel Philip A. Murphy, Jr., representing the commis-
sion, criticized the drafting of this proposed exception
for its potential to ‘‘be interpreted too broadly and . . .
[to] cause needless litigation.’’ Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 2, 1994 Sess., p. 513.
In his written testimony, Murphy urged that the ‘‘section
[of the raised bill] be deleted or substantially rewritten,’’
arguing that ‘‘the exception is so broad that it will result
in the exception swallowing the discriminatory prac-
tice. Thus a public accommodation that wishes to serve
only men can decline to provide women’s restrooms or
locker rooms and claim that it does not have to serve
women because of ‘privacy and modesty’ concerns.’’
Id., p. 591. Subsequently, the substitute bill, which was
ultimately enacted as Public Act No. 94-238, addressed
this criticism by eliminating the potentially problematic
‘‘considerations of privacy and modesty’’ language in
favor of the more simple exception for ‘‘separate bath-
rooms or locker rooms based on sex.’’ Substitute House
Bill No. 5606, 1994 Sess., § 1. Our legislature elected,
therefore, to address an application of the sex discrimi-
nation prohibition that might be inconsistent with ‘‘com-
mon sense,’’ by using simpler terms, rather than qualify-
ing the prohibition with reference to the subjective
morass of ‘‘modesty’’ and ‘‘privacy’’ urged by the defen-
dants and the amici. See In re Valerie D., 223 Conn.
492, 518 n.19, 523, 613 A.2d 748 (1992) (noting that court
ordinarily does not consider legislature’s failure to act
but considering ‘‘limited circumstances’’ of legislature’s
rejection of one bill and immediate adoption of compet-
ing bill ‘‘in its stead’’ as evidence of legislative intent);
see also Rainbow Housing Corp. v. Cromwell, 340
Conn. 501, 519 n.10, A.3d. (2021).
Consistent with the concerns of the commission in
advocating for the enactment of a bathroom and locker
room exception that did not include vague language
allowing for the ‘‘consideration of privacy and mod-
esty,’’ we 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 Con-
necticut, 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 men and could justify dis-
crimination against transgender individuals because
some customers, ‘‘due to modesty, find it uncomfort-
able’’ to be around such people. Livingwell (North),
Inc. v. Pennsylvania Human Relations Commission,
147 Pa. Commw. 116, 121, 606 A.2d 1287, appeal denied,
533 Pa. 611, 618 A.2d 401 (1992); see id., 121–22 (‘‘The
privacy interest expressed involves situations [in which]
the customers, due to modesty, find it uncomfortable
to have the opposite sex present because of the physical
condition in which they find themselves or the physical
activity in which they are engaged as customers at the
business entity. These customers would be embar-
rassed or humiliated if cared for or observed by mem-
bers of the opposite sex.’’). Such a result of potentially
limiting the access of women and transgender people
access to spaces on the basis of the privacy interests
of men or the ‘‘moral comfort’’ of customers defeats
the purpose of our state’s antidiscrimination legislation.
See, e.g., Corcoran v. German Social Society Frohsinn,
Inc., 99 Conn. App. 839, 843–44, 916 A.2d 70 (noting
legislative intent to broaden rather than limit scope of
§ 46a-64), cert. denied, 282 Conn. 910, 922 A.2d 1098(2007).
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 unin-
tended 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. See footnotes 10 and
11 of this opinion and accompanying text. 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 unambigu-
ous statutory text of § 46a-64. See Bostock v. Clayton
County, U.S. , 140 S. Ct. 1731, 1737, 207 L. Ed.
2d 218 (2020) (‘‘Those who adopted the Civil Rights Act
might not have anticipated their work would lead to
this particular result. Likely, they weren’t thinking about
many of the [Civil Rights] Act’s consequences that have
become apparent over the years, including its prohibi-
tion against discrimination on the basis of motherhood
or its ban on the sexual harassment of male employees.
But the limits of the drafters’ imagination supply no
reason to ignore the law’s demands.’’); see also id., 1749
(‘‘the fact that [a statute] has been applied in situations
not expressly anticipated by Congress does not demon-
strate ambiguity; instead, it simply demonstrates [the]
breadth of a legislative command’’ (internal quotation
marks omitted)). The purpose of the Public Accommo-
dation Act is to provide all sexes ‘‘full and equal accom-
modations in any place of public accommodation
. . . .’’ General Statutes § 46a-64 (a) (1). This purpose
is not frustrated by a broad reading of the statutory
language of § 46a-64 (a) or a narrow construction of the
exceptions provided under subsection (b) of the statute.
Thus, the sensitivity of the determination of where
to limit antidiscrimination protections, along with
evolving contemporary understandings of the terms
‘‘gender’’ and ‘‘sex’’; see footnote 2 of this opinion; ren-
ders this issue uniquely well suited for consideration
in the first instance by the legislature, which is the
policy-making branch of our government. See, e.g., Thi-
bodeau v. Design Group One Architects, LLC, supra,
260 Conn. 715 (recognizing policy-making role of legis-
lature in context of sex discrimination); see also Fay
v. Merrill, 338 Conn. 1, 51–52, 256 A.3d 622 (2021)
(‘‘[g]iven the reasonable policy concerns that support
the parties’ respective state constitutional arguments,
in interpreting our state’s constitution, we must defer
to the legislature’s primary responsibility in pronouncing
the public policy of our state’’ (internal quotation marks
omitted)); State v. Lockhart, 298 Conn. 537, 574, 4 A.3d
1176 (2010) (The court declined to adopt a state consti-
tutional rule requiring the recording of custodial interro-
gations because, although the rule would likely be bene-
ficial, ‘‘[d]etermining [its] parameters . . . requires
weighing competing public policies and evaluating a
wide variety of possible rules. . . . In [the court’s]
view, such determinations are often made by a legisla-
tive body because it is in a better position to evaluate
the competing policy interests at play . . . .’’ (Citation
omitted.)).
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. We further conclude that that denial
does not fall within an exception expressly provided for
in § 46a-64 (b) (1), rendering the practice of maintaining
women’s only workout areas within an otherwise public
gym a violation of the Public Accommodation Act.
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the com-
mission’s administrative appeal.
In this opinion the other justices concurred.
* January 25, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
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. . . .’’
2
For purposes of this opinion, we describe the claim at issue as ‘‘sex
discrimination’’ because that is the nature of the claim as raised and
described by the complainants. This description is consistent with this
court’s general practice of accepting the parties’ characterization of the
nature of the discrimination at issue. See, e.g., Spiotti v. Wolcott, 326 Conn.
190, 193, 163 A.3d 46 (2017) (considering complainant’s allegations of sex
discrimination). We do, however, recognize that the terms ‘‘sex’’ and ‘‘gen-
der’’ are not specifically defined by the statutory scheme and that the under-
standing of them has evolved over time. See, e.g., R. Oliveri, ‘‘Sexual Orienta-
After Bostock v. Clayton County,’’ 69 U. Kan. L. Rev. 409, 423–25 (2021).
Resolution of this appeal does not, however, require us to delve further into
the definitions of the terms ‘‘sex’’ or ‘‘gender,’’ as used in the statutory
scheme.
3
The commission appealed from the judgment of the trial court to the
Appellate Court, and we subsequently transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
4
‘‘Due to unusual procedures applicable to proceedings before the com-
mission, in this administrative appeal, the commission is named as both a
plaintiff (in its own capacity) and as a defendant (in its capacity as the
agency under which the . . . referee issued the decision from which the
commission appealed). See General Statutes § 46a-94a.’’ Commission on
Human Rights & Opportunities v. Echo Hose Ambulance, 322 Conn. 154,
157 n.1, 140 A.3d 190 (2016). Likewise, the complainants before the commis-
sion, Alex Chaplin and Daniel Brelsford, were named as defendants in the
administrative appeal, but they did not participate therein. Accordingly,
unless otherwise indicated, all references herein to the defendants are to
Edge Fitness and Club Fitness, collectively.
5
We note that, on March 2, 2021, we invited amici curiae to file briefs to
address the following question: ‘‘In this administrative appeal, did the trial
court and the [referee] properly determine that the provision of [women’s]
only workout areas by the defendant gyms did not violate . . . § 46a-64 (a)
and its prohibition against sex discrimination in public accommodations?’’
The following amici curiae accepted our invitation and filed briefs: (1)
the Jewish Federation of Greater Hartford, the Muslim Coalition of Connecti-
cut, and other religious organizations (collectively, interfaith amici); (2) the
Quinnipiac University School of Law Legal Clinic; (3) the GLBTQ Legal
Advocates & Defenders, Lambda Legal Education and Defense Fund, Inc.,
and the Connecticut Transadvocacy Coalition; and (4) the American Civil
Liberties Union of Connecticut. We are grateful to the amici for their thought-
ful advocacy in response to our invitation for briefs.
6
We note that the commission also argues that Edge Fitness failed to
plead the customer gender privacy exception before the referee and, there-
fore, waived the defense. We disagree. As the trial court observed in rejecting
this claim, (1) ‘‘these matters were consolidated and tried as one matter,’’
(2) ‘‘the formal requirements of pleading do not apply in administrative
proceedings,’’ (3) ‘‘these two issues were in fact specifically raised at the
hearing, tried, and reflected in the [referee’s] decision,’’ (4) ‘‘issues such as
the appropriateness of pleadings and evidentiary rulings in an administrative
[proceeding] are reviewed on appeal . . . on an abuse of discretion basis,’’
(5) ‘‘the issue presented in this matter is an important issue that has ramifica-
tions beyond the parties,’’ and (6) ‘‘issues such as gender privacy and reli-
gious rights are legal principles that are naturally intertwined with a defense
against the discrimination alleged.’’ See generally Presidential Village, LLC
v. Phillips, 325 Conn. 394, 412 n.15, 158 A.3d 772 (2017) (‘‘[t]he fundamental
purpose of a special defense, like other pleadings, is to apprise the court
and opposing counsel of the issues to be tried, so that basic issues are not
concealed until the trial is underway’’ (internal quotation marks omitted)).
We therefore agree with the trial court’s conclusion that Edge Fitness did
not waive the special defense, which was raised and argued during the
administrative proceeding, because the commission was on notice of it.
7
We note that, for purposes of the Public Accommodation Act, the legisla-
ture defines the term ‘‘discrimination’’ as ‘‘includ[ing] segregation and sepa-
ration . . . .’’ General Statutes § 46a-51 (6); see also General Statutes § 46a-
51 (8) (defining ‘‘discriminatory practice’’ as, inter alia, ‘‘a violation of’’ § 46a-
64). The statutory scheme does not, however, define the terms ‘‘segregate,’’
‘‘segregation,’’ ‘‘separate,’’ or ‘‘separation.’’ Looking to the dictionary for the
common usage of those terms; see, e.g., State v. Panek, supra, 328 Conn.
229; we observe that Merriam Webster’s Collegiate Dictionary defines the
term ‘‘segregate’’ as ‘‘to separate or set apart from others or from the general
mass: isolate . . . .’’ Merriam Webster’s Collegiate Dictionary (10th Ed.
1993) p. 1058. Similarly, the term ‘‘segregation’’ refers to the ‘‘act or process
of separation’’; Black’s Law Dictionary (6th Ed. 1990) p. 1358; or to ‘‘the
separation or isolation of a race, class, or ethnic group by . . . divided
educational facilities, or other discriminatory means . . . .’’ Webster’s Third
New International Dictionary (1961) p. 2057; accord Merriam Webster’s
Collegiate Dictionary, supra, p. 1058; see also Sheff v. O’Neill, 238 Conn. 1,
28 and n.31, 678 A.2d 1267 (1996) (similarly defining term ‘‘segregation,’’ as
used in article first, § 20, of state constitution). The term ‘‘separate’’ is
defined as ‘‘set or kept apart,’’ ‘‘not shared with another: INDIVIDUAL,
SINGLE,’’ ‘‘AUTONOMOUS, INDEPENDENT,’’ and ‘‘DISTINCT, DIFFER-
ENT . . . .’’ Webster’s Third New International Dictionary, supra, p. 2069;
see also Merriam Webster’s Collegiate Dictionary, supra, p. 1067 (defining
‘‘separate’’ as ‘‘set or kept apart’’ and ‘‘existing by itself’’). These definitions
plainly and unambiguously prohibit, without qualification, any isolation,
separation or keeping apart ‘‘on account of sex,’’ within a ‘‘public accommo-
dation,’’ and do not by themselves account for isolation, separation or keep-
ing apart to protect or advantage a class of people that might be deemed
to need or deserve protection or advantage, as the defendants argue with
respect to the salutatory effects of women’s only fitness facilities. Cf. General
Statutes § 46a-64 (b) (2) (prohibition on age discrimination ‘‘shall not apply
to minors or to special discount or other public or private programs to
assist persons sixty years of age and older’’).
8
We note that it is undisputed that the women’s only workout areas at
issue in this appeal do not fall within the plain meaning of the statutory
terms ‘‘bathroom’’ or ‘‘locker room.’’ More specifically, the record indicates
that the women’s only workout areas in each facility are separated from
the larger portions of the gyms by doors with blinds and branding, as well
as by walls without windows. The women’s only areas are small relative to
the rest of the facilities and, therefore, contain a lesser amount of the same
equipment. There is no indication in the record that either of the women’s
only workout areas at issue contain showers, toilets, lockers, or any other
feature associated with a bathroom or locker room.
9
General Statutes § 46a-60 (b) (1) provides in relevant part: ‘‘It shall be
a discriminatory practice in violation of this section . . . [f]or an employer,
by the employer or the employer’s agent, except in the case of a bona fide
occupational qualification or need, to refuse to hire or employ or to bar or
to discharge from employment any individual or to discriminate against
such individual in compensation or in terms, conditions or privileges of
employment because of the individual’s . . . sex . . . .’’
10
We note that no constitutional claim has been raised in this appeal.
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. See Bostock v. Clayton County, U.S. , 140 S. Ct. 1731, 1753–54,
207 L. Ed. 2d 218 (2020) (declining to address ‘‘[the employers’] fear that
complying with Title VII’s requirement [as to not discriminating against
homosexual or transgender persons] may require some employers to violate
their religious convictions’’ because ‘‘how [the] doctrines protecting religious
liberty [namely, the first amendment and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. § 2000bb et seq.] interact with Title VII [is a question]
for future cases’’ given lack of religious liberty claim); see also Fay v. Merrill,
338 Conn. 1, 21 n.18, 256 A.3d 622 (2021) (noting ‘‘the general rule that
[c]onstitutional issues are not considered unless absolutely necessary to
the decision of a case’’ (internal quotation marks omitted)).
11
We may consider hypothetical scenarios beyond the facts of the case
before us in determining whether a construction of the plain language of a
statute will lead to an absurd result. See, e.g., State v. Brown, 310 Conn.
693, 708–709, 80 A.3d 878 (2013) (determining that interpretation of special
parole statute created absurd results on basis of hypothetical factual scenar-
ios ); State v. Gelormino, 291 Conn. 373, 383–84, 968 A.2d 379 (2009) (consid-
ering but rejecting defendant’s argument that plain and unambiguous lan-
guage of mandatory minimum sentencing statute yielded absurd result when
considered in context of hypothetical fact patterns).
12
‘‘[I]t is now well settled that testimony before legislative committees
may be considered in determining the particular problem or issue that the
legislature sought to address by the legislation. . . . This is because legisla-
tion is a purposive act . . . and, therefore, identifying the particular problem
that the legislature sought to resolve helps to identify the purpose or pur-
poses for which the legislature used the language in question.’’ (Internal
quotation marks omitted.) In re Elianah T.-T., 326 Conn. 614, 625–26 n.10,
165 A.3d 1236 (2017); see, e.g., Hatt v. Burlington Coat Factory, 263 Conn.
279, 314–15, 819 A.2d 260 (2003).
13
We note that the written testimony of then Attorney General Blumenthal
is not contained in the printed record of the Joint Standing Committee
Hearings but is included in the legislative bill file available in the Connecticut
State Library.