[Volokh] Eugene Volokh: Women-Only Exercise:

[notify at powerblogs.com]

Posted by Eugene Volokh:
Women-Only Exercise:
http://volokh.com/archives/archive_2008_03_02-2008_03_08.shtml#1204174780


   [1]Prof. Glenn Reynolds (InstaPundit) asked whether [2]this would
   violate Massachusetts antidiscrimination law:

     Harvard University has moved to make Muslim women more comfortable
     in the gym by instituting women-only access times six hours a week
     to accommodate religious customs that make it difficult for some
     students to work out in the presence of men.

     Men have not been allowed to enter the Quadrangle Recreational
     Athletic Center during certain times since Jan. 28, after members
     of the Harvard Islamic Society and the Harvard Women's Center
     petitioned the university for a more comfortable environment for
     women....

   [3]Prof. John Banzhaf has put out a press release saying that it
   probably does:

     ... In 1998 a female weight lifter in Boston was awarded $5000 when
     she was denied admission to a male-only section of a gym which had
     a separate gym area for women. The Massachusetts Commission Against
     Discrimination made the ruling despite arguments that separate
     weight-lifting areas were necessary to prevent "sexual harassment,"
     and a finding that it did in fact tend to reduce sexual harassment.
     [Hassan and DiCenso v. City of Boston, et al., 20 MDLR 83]

     Just a year earlier Superior Court Judge Burnes ruled that a "women
     only" health club violates Massachusetts' public accommodation
     statute by refusing to admit men, and could not justify its policy
     on privacy grounds. [Foster v. Back Bay Spas, d/b/a/ Healthworks
     Fitness Center, Suffolk Superior Court No. 96-7060 (1997).]

     Although the legislature responded by exempting some health clubs
     which are established solely for use by one gender, that exemption
     does not appear to apply here because the gym is used by both
     genders together during most times of the day, and because Harvard
     receives public funds. In the statutory words:

     "however, that with regard to the prohibition on sex
     discrimination, this section shall not apply to a place of exercise
     for the exclusive use of persons of the same sex which is a bona
     fide fitness facility established for the sole purpose of promoting
     and maintaining physical and mental health through physical
     exercise and instruction, if such facility does not receive funds
     from a government source." [ALM GL ch. 272, § 92A] ...

   A couple of quick thoughts:

   I may be mistaken, but my sense is that the [4]relevant statute
   wouldn't apply to Harvard if the exercise facilities are open only to
   Harvard students, faculty, and staff (and perhaps alumni). The statute
   states that, "A place of public accommodation, resort or amusement
   within the meaning hereof shall be defined as and shall be deemed to
   include any place, whether licensed or unlicensed, which is open to
   and accepts or solicits the patronage of the general public" (emphasis
   added), and Harvard-only facilities aren't aimed at "the general
   public." Cf. Haskins v. President and Fellows of Harvard College, 13
   Mass.L.Rptr. 691, 2001 WL 1470314 (Mass. Super. 2001) ("Although
   Harvard accepts applications for admittance from the general public,
   it admits only a small fraction of applicants. The unsuccessful
   majority (like the rest of the public) is then excluded. Thus Harvard
   is not a place of public accommodation within the meaning of the
   statute.").

   If there's some statutory text or caselaw I may have missed on this,
   please let me know.

References

   1. http://instapundit.com/archives2/015820.php
   2. http://media.www.dailyfreepress.com/media/storage/paper87/news/2008/02/25/News/To.Accommodate.Muslim.Students.Harvard.Tries.WomenOnly.Gym.Hours-3232133.shtml
   3. http://banzhaf.net/
   4. http://www.mass.gov/legis/laws/mgl/272-92a.htm