Connecticut’s Supreme Court recently ruled that gyms are not allowed to offer women-only exercise areas without explicit statutory permission. At first sight, this ruling may seem harsh and dogmatic. From my perspective as an Israeli law professor and women’s rights advocate, this decision is bold and foresighted. Israel’s recent experience of rampant expansion of sex segregation in public spaces should serve as a cautionary tale for American policymakers, activists, and jurists who care about sex and gender equality.
Currently, the conversation in America around sex-based distinctions focuses on the tension between transgender rights and protective spaces for women. But there is a third dimension to the issue – that of religious accommodation – which occupies countries worldwide. Although it is still nascent in the U.S., it is likely to occupy its law and society soon, as the Connecticut case illustrates.
Connecticut’s civil rights law permits offering sex-specific spaces in three contexts as exceptions to the non-discrimination rule: bathrooms, locker rooms, and sleeping areas. Emphasizing that these exceptions should be construed narrowly, least the exception swallows the anti-discrimination rule, the Court concluded that business could not read an implied gender privacy exception into the prohibition against sex discrimination.
Initially, the case seemed of little significance: a consumer law complaint submitted by two male gym members annoyed that they had to wait for fitness equipment while unused equipment sat in the next room, into which they were not allowed. The justices were quick to recognize, as did the State’s Human Rights Commissioner who initiated the legal proceedings, that discrimination of men was not the real question here. Rather, equality of women and gender non-conforming individuals was at stake. Indeed, the Court’s call to stakeholders produced dozens of submissions of friends-of-the-court briefs. Their diverse viewpoints illustrate that sex-based classification is a question for our time.
The ACLU of Connecticut maintained in its brief to the Court that sending women to a separate space could not be a solution against sexual harassment. LGBTQ groups highlighted the inaccessibility of binary areas and the violence and dignitary harms they cause. A brief submitted jointly by religious Muslim and Jewish groups was of the most interest to me, as its arguments sounded familiar to my Israeli ear. The religious groups argued that a ruling against women-only spaces would harm observant women who would not exercise in the presence of men due to modesty concerns, preventing them from using essential public facilities such as fitness centers.
Similar arguments legitimize sex-segregated spaces in Israel, where sex segregation these days extends far beyond gyms and public bathrooms, to occupational training, public buses in ultra-Orthodox cities, separate opening hours in public libraries, and divided concert halls. Justified under a mixture of rationales such as a necessary albeit unpleasant means for integrating ultra-Orthodox men in the employment and consumer markets, or as an expression of liberal multiculturalist tolerance towards religious minorities, these recent developments posit a severe threat to women and gender equality. This is particularly disconcerting for a country that has valorized sex equality as part of its ethos and law since its inception.
In the legal and public debates in Israel, the women’s interest argument is repeatedly pulled out from the hat as an afterthought, attempting to legitimize practices that originated by the demand of religious leaders for men’s interest. Women’s proximity might interfere with men’s piety by instilling inappropriate thoughts or actions.
Take the case of segregated academic studies, whose details I know well because I led a petition to Israel’s High Court of Justice against their legality. This petition produced a landmark ruling last summer. A decade ago, Israel’s government encouraged academic institutions to offer programs tailored for ultra-Orthodox students. The government initiated these heavily subsidized programs to increase ultra-Orthodox men’s participation rates in the labor market.
Dozens of colleges responded to governmental incentives and featured studies in separate campuses or different study times for men and women. However, as last summer’s High Court ruling confirmed, conditions in these programs were not a case of “separate but equal.” Women’s conditions and opportunities were inferior. Female students were offered pink collar study subjects, low in pay and prestige, and received less tuition support in grants and fellowships. Female professors were not allowed to teach in men’s classrooms, rendering them less employable.
Very quickly, however, advocates of segregated programs pulled the gender equality card, arguing that such programs accommodate ultra-Orthodox women by allowing them to pursue higher education, an option that they would have otherwise avoided, either because they felt uncomfortable studying alongside men after spending their K-12 years in women-only schools, or because their parents, husbands, and rabbis objected to their mixing with men, even in an academic classroom. To complicate things even more, alongside the disingenuous use of the women accommodation argument by parties interested in maintaining the gendered hierarchical status quo within the ultra-Orthodox community by painting it as concern for women’s wellbeing and enhancement – some ultra-Orthodox women made this claim authentically, feeling that women-only classrooms are the perfect solution to their difficulties.
Israel’s High Court recognized that segregation in public activities such as academic studies violated women’s right to equality and dignity. Yet it found, in a 3:2 decision, that segregated academic programs pass muster constitutionally because they served a legitimate state interest. After finding a legislative textual anchor authorizing the Government to segregate, the Court stipulated that its approval of the programs depended upon tempering the discriminatory features against female professors, and ending unnecessary segregation practices such as extending the segregation beyond the classroom level, and in MA level programs. The justices in the majority mentioned women’s preference for single-sex studies as an indicator that segregation served their interests.
It is too early to determine the impact of this ruling. What is clear is that questions of institutionalized sex segregation continue extending to additional areas, such as occupational training or opening hours in national parks. In all of these new contexts, women’s comfortability rationale is intertwined with community sanctions against women who consider the co-ed options and the downplaying the interest of strictly observant men in not being next to women.
Israel’s experience illustrates that in its prediction that seemingly benign accommodations may facilitate the return of boy’s clubs, the Connecticut Court was apposite to the challenges ahead. Reading a privacy exception into the law could presumably benefit women, the Court wrote, but it could also “be invoked to exclude women based on the privacy interests of men and could justify discrimination against transgender individuals.” Let women’s privacy interests enter, and you let in the “privacy interests of men.” The “moral comfort” of customers, it continued, “defeats the purpose of our state’s anti-discrimination legislation.”
Exclusion of women or providing them with fewer resources or space is constantly falsely presented under the headline of symmetrical hence seemingly harmless separation between the sexes. Such phenomena are already evident in the U.S., although they are still nascent. In 2019, the Third Circuit examined a New Jersey condominium’s practice of offering single-sex swimming hours to cater to its religious residents. The Court found that the “55 and over” condominium violated the Fair Housing Act because hours were set according to stereotypical assumptions about gender roles. Men, for example, received the evening hours because they were presumably at the office during the day. They also received Friday mornings because this is when Jewish religious women are supposedly cooking for Shabbat. One of the judges commented that he had doubts whether the FHA at all permitted separate swimming hours, but he left the question open because the parties did not address it.
Even if the Connecticut case does not continue to the federal level and potentially to SCOTUS, it is safe to project that similar questions will increasingly engage top U.S. courts. The authority of businesses to offer women-only spaces touches raises questions that are closely related, yet not identical, to the resounding 2020 Bostock decision, in which the Supreme Court found that the ban on relying on sex in Title VII of the 1964 Civil Rights Act covered against the adverse treatment of transgender people, and to the Masterpiece Cakeshop case and its aftermath, concerning business owners’ autonomy to refuse service that is in tension with their religious beliefs.
As a feminist, the stance I articulate here is often a lonely one. Cautioning that when we ask for separate spaces as recognition of our discomfort and vulnerability as women we should be careful what we wish for, attracts fire. In Israel, it is met not only with finger-pointing from religious groups arguing that my stance is a imperialist imposition of western values but also from liberals who protest against what they see as paternalistic disrespect of the wishes of religious women, and insensitivity to their needs. Cynical feminists may even comment that a court ruling against women-only spaces is a sophisticated camouflage of how the law is persistently reshaped to fit men’s interests.
Most disconcerting for me is the criticism from religious women, especially from religious feminists. While critical about many of the modesty and segregation practices within their communities that they deem unwarranted by religious law, and fighting to lower divide in their shuls, they still feel that they want and deserve some accommodation for their modesty sensibilities. However, for them the danger is even more imminent than for women in general.
Religious women may feel that a women-only publicly-funded concert is a welcome adjustment to their preferences and needs only to discover that it served to legalize public funding of men-only activities, which, judging by historical experience, is very likely to be more generous than the budget allocated to all-women activities.
A possible critique against my position, and against that of the Connecticut Court, is that women-only spaces are not the same as men-only spaces, and legal doctrine and public discourse should find ways to fit in this complexity. Indeed, women-only spaces are about taking a break from the sexist world out there, allowing for a pause from women’s inferior social conditions. Men-only spaces, on the other hand, center on keeping women out to maintain male privilege. But principles are different from realpolitik. It is hard to see how legal recognition of women’s privacy interests would not serve to justify men’s privacy interests in the name of symmetry and the universality of rights.
Finally, the Connecticut Supreme Court did not say that separate gym spaces would be unlawful under any circumstances. Rather, it clarified that introducing sex-based settings into new contexts would require explicit statutory authorization. This point is not legal hairsplitting. It leaves room for new contexts where there might be political agreement that sex should be deemed relevant. But such changes must be preceded by a deliberative public process that allows stakeholders to express their diverse perspectives, not by a private business initiative.
Societies that care about sex and gender equality should craft the contexts in which sex is allowed to matter carefully and narrowly. Recognition of sex differences is essential, but accommodation is legitimate only when it serve sex and gender equality, not when it undermines it.