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Why don’t health clubs that restrict their membership to women run afoul of discrimination laws?  Or for that matter, why don’t any clubs that restrict membership by gender violate the law?

The answer, in short, is that sometimes they do, but not always. The question involves Title VII of the Civil Rights Act as well as state anti-discrimination laws and requires distinguishing between public and private organizations and their health, social and business functions. But it also requires figuring out how the right of privacy applies to customers.  It's a multi-variable problem.

Private clubs that do not take certain tax exemptions and adhere to certain other laws have more freedom to choose their members. In balancing the members’ right to associate (or not to associate) with whom they choose versus the public's right of equal access, the former wins, as long as the clubs don't take public money. The toniest golf clubs are private in this sense.

Most clubs, however, are not private. In the eyes of the law, they are “public accommodations” that may not discriminate on the basis of gender, race, religion or other reasons. A gym’s decision not to sell memberships to men seems to be a flagrant violation of this rule. The response is usually that the goal is to protect women’s privacy.

Right to Privacy

The Supreme Court has long held that the right to privacy is implied by certain other rights explicitly outlined in the Constitution. Where the right to privacy begins and ends is perhaps the thorniest Constitutional question of the last sixty years. How it applies to health clubs is only a small part of the puzzle.

Generally, in order to justify gender discrimination in membership, gyms 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.

It is clearly a very fact-specific argument, and the decisions do not provide a lot of helpful guidance to health club owners.

Certain states have tackled the problem legislatively. Alaska, Colorado, Hawaii, Illinois, Massachusetts, New Jersey, Tennessee and Wisconsin, for example, exempt health clubs from laws which otherwise prohibit sex discrimination in public accommodations. The laws essentially treat gyms like locker rooms or bathrooms, which have always been exempt. California has no such provision.

What About Clubs that Have Been Forced to Admit Women?

Some of the highest profile decisions lately, like that of the Augusta National Golf Club to admit women, have been economically, rather than legally driven.

Other clubs, like Rotary, Kiwanis, Jaycees and Lions have been forced by the courts to admit women on the theory that they admitted so many men that they were not actually private clubs but public accommodations. Part of the background undoubtedly had to do with the business networking function of these organizations, which arguably gives an economic advantage to members. To deny that advantage to women certainly seems to violate the spirit, if not the letter of Title VII.

But keep in mind that the argument has been about the distinction between public and private; it was not about balancing the rights to equal access and privacy in public organizations.

Women have long retreated to the Ladies Room to have important conversations.  What if it became a well-known convention for businesswomen to meet at the local women only gym to wheel, deal and make money?

This could conceivably come up in the context not of the gym, but of women's business and professional organizations. At that point, courts might actually face the latter question.  It would be a new match-up and may be the next contentious turn for privacy law.

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