Exercising the Right to Public Accommodations: The Debate over Single-Sex Health Clubs

Recently, the debate over single-sex health clubs gained national attention when a patent attorney, James Foster, sued for admission to Healthworks, a Massachusetts all-women's health club. Jurisdictions across the country have also been struggling with the issue, and no clear consensus has emerged. Besides highlighting a wide variance between state laws, the debate over single-sex health clubs illuminates tensions within current feminist thought and within the current legal doctrine surrounding public accommodations statutes. Specifically, the presence of single-sex health clubs, like the question of single-sex schools, asks whether, in some contexts, it is legally and morally acceptable for men and women to establish and maintain their own, sex segregated institutions.

To make the ideological issues even more complex, there is a question whether women's asserted need to be “protected” from men's presence is based on a stereotype about women's supposed “delicacy” or whether it is based on legitimate concerns about privacy and sexual harassment. Furthermore, the debate over single-sex health clubs brings into sharp relief a central doctrinal tension between the First Amendment right of freedom of association and federal and state public accommodations law. Current freedom of association doctrine allows “private clubs” to continue to choose their members based on criteria, such as race, sex, and religion, that are usually considered illegitimate bases for decision in other areas of the law. In recent years, exclusionary clubs have been under broad attack from feminist and civil rights critics who argue that the exclusion of women and minorities from these clubs also leads to exclusion from business and financial opportunities.

These clubs have also fallen upon general disfavor--white male politicians and business leaders have a difficult time explaining away their membership in exclusionary clubs to the voting public and a diverse consumer base. When applied to health clubs and gyms, however, many of the distinctions between “private” and “public” begin to blur. How should the law treat single-sex health clubs? More broadly, what types of exclusions and discriminations can and should the law allow organizations open to the public to make?

To that end, my proposed solution would have Congress amend the federal public accommodations law to prevent sex discrimination and sexual harassment in public accommodations.