As of late, I have been riding the Class Pass wave, trying out new classes in my Lincoln Park community on a fairly regular basis (which has been quite fun I must say). The other day as I was waiting for my barre class to begin, the woman to my right commented, “is this a female-only class? Does this mean I cannot bring my husband?” She looked perplexed. I could see why she might think that seeing that the entire 30-person classroom (and the staff out in the lobby) were all women.
I checked and it turns out that the barre studio that I was attending actually is not a ladies-only facility and men are more than welcome to attend. This question, however, is still relevant for those who are considering including such a concept into their fitness facility. I have discussed this topic with several start up fitness clients in the past, namely, is it permissible to be gender-restrictive with a fitness studio and if so, how does this type of restriction avoid running afoul of anti-discrimination laws?
The answer to this question involves federal laws (Title VII of the Civil Rights Act) as well as state and local anti-discrimination laws and thus the analysis will vary considerably from jurisdiction to jurisdiction. In any analysis, however, the pivotal issues will be centered around (1) whether the facility is deemed a private club or “public accommodation” (which is a legally defined term) and (2) a person’s right to privacy.
Most clubs and fitness facilities in the eyes of law will be deemed public because they hold themselves out to the public. Holding a business out to the public is construed as analogous to making an offer to the public to provide services, goods, etc., which offer is freely subject to be accepted by all members of the public on an equal basis.
The difficult question then turns on a balancing act between the public’s right to access a public accommodation versus a person’s (or subset of people) right to privacy. Generally, in order to justify gender discrimination, gyms would have to demonstrate that:
- Not excluding members of one sex would harm business operations,
- The customers’ privacy interests are entitled to protection under law, and
- No reasonable alternative exists to protect customers’ privacy rights.
Specifically, Illinois carves out an exception to the general prohibition of gender discrimination for organizations that are categorized as “Facilities Distinctly Private” defined to include, among others organizations, “health clubs”. In essence, the law in some jurisdictions attempts to treat certain health facilities like locker rooms or bathrooms, which have always been exempt from anti-discrimination prohibitions. However, as I mentioned above, state and local law can vary on this issue and it would be prudent for fitness professionals to discuss such applicable laws with their legal counsel before providing any single-gender memberships, classes, or other services.
This issue is not only convoluted from a legal standpoint, it is also sticky from a public relations standpoint (when taking transgender issues into account, etc.). In reality, fitness facilities would be wise to stay clear of the any negative stigmatism that may result from being restrictive unless there is very good reason for doing so (think facilities such as Flirty Girl Fitness where women are more likely to feel uncomfortable with the opposite sex present). As an alternative, many facilities choose to be gender-neutral as a policy matter but then focus a substantial portion of their marketing efforts on women. This way, the legal issues fade. A female-based culture can still come into focus if that is the desired result without running afoul of anti-discrimination issues from a legal or PR perspective. Today, most businesses see the value in marketing to and encouraging participation by all genders since at the end of the day, the more people that come in the door, the more profitable the business will be.