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*********************************************** 
COMMISSION ON HUMAN RIGHTS AND

OPPORTUNITIES v. EDGE

FITNESS, LLC, ET AL.

(SC 20538)

Robinson, C. J., and McDonald, D’Auria,

Kahn, Ecker and Keller, Js.

Syllabus

Pursuant to the Public Accommodation Act (§ 46a-64 (a)), ‘‘[i]t shall be a

discriminatory practice . . . [t]o deny any person within the jurisdiction

of this state full and equal accommodations in any place of public

accommodation . . . because of . . . sex . . . [or] to discriminate,

segregate or separate on account of . . . sex . . . .’’

Pursuant further to that act (§ 46a-64 (b) (1)), the provisions of § 46a-64

prohibiting sex discrimination ‘‘shall not apply to . . . separate bathrooms or locker rooms based on sex.’’

The plaintiff, the Commission on Human Rights and Opportunities, appealed

to the trial court from the decision of the commission’s human rights

referee, who found that the defendants, E Co. and C Co., had not engaged

in discriminatory public accommodations practices by providing separate women’s only workout areas in their otherwise public fitness facilities. The complainants, two members of the defendants’ respective gyms

who both identified as male, filed complaints with the commission after

they experienced delays in completing their workouts because they had

to wait for other members to finish using the equipment in the coed

portions of the facilities. The human rights referee concluded that the

defendants did not violate § 46a-64 by maintaining women’s only workout areas and dismissed their complaints. On appeal to the trial court,

that court recognized that a women’s only workout area is neither a

bathroom nor a locker room but nonetheless concluded that the defendants’ provision of such areas did not violate the sex discrimination

provisions of the Public Accommodation Act because there was an

implied customer gender privacy exception encompassed within § 46a64 (b) (1). In so concluding, the court considered the privacy interests

underlying the bathroom and locker room exceptions, as well as the

burden that the elimination of women’s only areas would place on

women of certain religious practices. The trial court observed that,

without an implied gender privacy exception, the provision of other

types of separate facilities, such as showers, dressing rooms and hospital

rooms, would constitute a violation of the act. Accordingly, the court

rendered judgment dismissing the commission’s administrative appeal,

from which the commission appealed. Held that the trial court incorrectly concluded that § 46a-64 (b) (1) contains an implied gender privacy

exception that exempted the defendants’ provision of women’s only

workout areas from the act’s general prohibition against sex discrimination, and, accordingly, this court reversed the trial court’s judgment and

remanded the case with direction to render judgment sustaining the

commission’s administrative appeal: it was undisputed that the defendants’ gyms are places of public accommodation and that their provision

of women’s only workout areas constitutes a discriminatory practice

under the act unless subject to a statutory exception, and, because

women’s only workout areas did not fit within the plain meaning of the

terms ‘‘bathroom’’ or ‘‘locker room,’’ as gleaned from their dictionary

definitions, this court concluded that the exceptions set forth in § 46a64 (b) (1) plainly and unambiguously did not encompass women’s only

workout areas; moreover, if the legislature had intended to include an

additional exception to the act’s general ban on sex based discrimination

in public accommodations, it could have done so, as it did in the statute

(§ 46a-60 (b) (1)) providing for an exception to the general ban on sex

discrimination when sex constitutes a bona fide occupational qualification for a position of employment, and interpreting § 46a-64 (b) (1) to

include an implied gender privacy exception would be inconsistent with

the maxim that remedial statutes, like the act, should be construed

liberally but that exceptions to remedial statutes should be construed
narrowly; furthermore, the legislative history indicated that the legislature had rejected a version of the act that exempted the provision of

separate facilities for males and females ‘‘based on considerations of

privacy and modesty’’ as being too broad and subjective, instead adopting the cabined exception limited to ‘‘separate bathrooms or locker

rooms based on sex’’; in addition, the fact that this court’s construction

of § 46a-64 may lead to results unintended by the legislature, as posited

by the parties, the referee and the trial court with respect to lactation

and dressing rooms, was not a reason to depart from the plain and

unambiguous statutory text of the statute, and the sensitivity of the

determination of where to limit antidiscrimination protections on the

basis of sex rendered the issue uniquely well suited for consideration

in the first instance by the legislature.

Argued May 5, 2021—officially released January 25, 2022*

Procedural History

Appeal from the decision of the plaintiff that the

named defendant and the defendant Club Camel, Inc.,

Bloomfield, did not engage in discriminatory public

accommodations practices, brought to the Superior

Court in the judicial district of New Britain, where the

case was tried to the court, Cordani, J.; judgment dismissing the appeal, from which the plaintiff appealed.

Reversed; judgment directed.

Michael E. Roberts, human rights attorney, for the

appellant (plaintiff).

James F. Shea, with whom was Allison P. Dearington, for the appellee (named defendant).

Mario R. Borelli, for the appellee (defendant Club

Camel, Inc., Bloomfield).

Kenneth J. Bartschi filed a brief for the GLBTQ Legal

Advocates & Defenders et al. as amici curiae.

Kevin M. Barry filed a brief for the Quinnipiac University School of Law Legal Clinic as amicus curiae.

Erick M. Sandler filed a brief for the Jewish Federation of Greater Hartford et al. as amici curiae.

Dan Barrett filed a brief for the American Civil Liberties Union of Connecticut as amicus curiae.
Opinion

ROBINSON, C. J. This appeal presents a significant

question of first impression with respect to whether

the Public Accommodation Act, General Statutes § 46a64,1 contains an implied customer gender privacy exception to its general prohibition against sex based discrimination.2 The plaintiff, the Commission on Human Rights

and Opportunities (commission), appeals3

from the

judgment of the trial court dismissing its administrative

appeal from the decision of the commission’s human

rights referee (referee), who found that the defendants

Edge Fitness, LLC (Edge Fitness) and Club Camel, Inc.,

Bloomfield, doing business as Club Fitness (Club Fitness),4 did not engage in discriminatory public accommodations practices. On appeal, the commission claims

that the trial court incorrectly concluded that women’s

only workout areas in otherwise public gyms did not

violate § 46a-64 because that statute contains an implied

customer gender privacy exception. We conclude that

the exceptions to the general prohibition against discrimination on the basis of sex in public accommodations are limited to those expressly provided by the

plain language of § 46a-64 and, therefore, that there is

no implied customer gender privacy exception to the

statute. Accordingly, we reverse the judgment of the

trial court.

The record reveals the following undisputed facts

and procedural history. The complainants, Alex Chaplin

and Daniel Brelsford, were members of the defendants’

gyms, Club Fitness and Edge Fitness, respectively. Both

individuals identify as males and used the larger coed

portions of the facilities. While using equipment in the

main workout areas, the complainants experienced

slight delays in completing their workouts because they

had to wait for other members to finish using that equipment. This led the complainants to believe that the

defendants, by providing separate women’s only fitness

areas in their facilities, had discriminated against them

on the basis of sex, and they filed complaints with

the commission challenging the practice. The referee

concluded that the defendants did not violate § 46a64 by maintaining women’s only workout areas and

dismissed the complaints.

The commission filed an administrative appeal from

the decision of the referee with the trial court pursuant

to General Statutes § 4-183. In its memorandum of decision, the trial court first recognized that a women’s only

fitness area is neither a bathroom nor a locker room.

The court then questioned whether ‘‘§ 46a-64 (b) (1)

allow[s] for exceptions to the sex based antidiscrimination prohibitions in cases other than bathrooms or

locker rooms [in which] the same gender privacy interests that allowed for the exceptions for bathrooms and

locker rooms are in play.’’ The trial court observed that,

‘‘unless the statute is read to include a gender privacy
exception similar to the express exception for bathrooms and locker rooms, it would be a violation to

provide separate showers, dressing rooms and hospital

rooms for men and women in public accommodations.’’

The trial court further considered the burden that the

elimination of women’s only workout areas would place

on women of certain religious practices. The trial court,

therefore, concluded that ‘‘the provision of women’s

only exercise areas in fitness centers of public accommodation does not violate the sex based antidiscrimination provisions of . . . § 46a-64.’’ Accordingly, the trial

court rendered judgment dismissing the commission’s

administrative appeal. This appeal followed.5 See footnote 3 of this opinion.

On appeal, the commission claims that the language

of § 46a-64 (b) (1) is plain and unambiguous and does

not contain a gender privacy exception to the general

prohibition against sex discrimination. The commission

asserts that a gender privacy exception is not a valid

defense to an otherwise discriminatory sex based classification.6

In response, the defendants argue that, because

antidiscrimination statutes are to be construed broadly

to effectuate their beneficent purpose, the remedial purpose of § 46a-64 is advanced by the defendants’ provision of women’s only workout areas. The defendants

also contend that the commission’s reading of the statute is so narrow that it would yield absurd results. We

agree with the commission and conclude that the trial

court’s expansion of the exceptions in § 46a-64 (b) (1)

to the general prohibition against sex discrimination

was inconsistent with the plain language of the statute.

Whether the trial court correctly determined that

there is an implied customer gender privacy exception

encompassed within § 46a-64 (b) (1) is a question of

statutory construction that presents a question of law,

over which we exercise plenary review. See, e.g., Boisvert v. Gavis, 332 Conn. 115, 141, 210 A.3d 1 (2019). It

is well settled that we follow the plain meaning rule

in General Statutes § 1-2z in construing statutes ‘‘to

ascertain and give effect to the apparent intent of the

legislature.’’ (Internal quotation marks omitted.) Sena

v. American Medical Response of Connecticut, Inc.,

333 Conn. 30, 45, 213 A.3d 1110 (2019); see, e.g., id.,

45–46 (setting forth plain meaning rule).

In interpreting statutes, words and phrases not otherwise defined by the statutory scheme are construed

according to their ‘‘commonly approved usage . . . .’’

General Statutes § 1-1 (a); see, e.g., State v. Panek, 328

Conn. 219, 227–28, 177 A.3d 1113 (2018). In determining

the commonly approved usage of the statutory language

at issue, we consult dictionary definitions. See, e.g., id.,

229. It is well established that a statute is considered

plain and unambiguous when ‘‘the meaning . . . is so

strongly indicated or suggested by the [statutory] language . . . that . . . it appears to be the meaning and
appears to preclude any other likely meaning. . . . [I]f

the text of the statute at issue . . . would permit more

than one likely or plausible meaning, its meaning cannot

be said to be plain and unambiguous.’’ (Emphasis in

original; internal quotation marks omitted.) Ledyard v.

WMS Gaming, Inc., 338 Conn. 687, 698 n.6, 258 A.3d

1268 (2021).

As required by § 1-2z, we first determine whether

the statutory language is ambiguous. Section 46a-64 (a)

provides in relevant part that it ‘‘shall be a discriminatory practice in violation of this section: (1) [t]o deny

any person within the jurisdiction of this state full and

equal accommodations in any place of public accommodation, resort or amusement because of . . . sex . . .

[or] (2) to discriminate, segregate or separate on

account of . . . sex . . . .’’ Section 46a-64 (b) (1) then

sets forth the exceptions to the statute’s general prohibition against discrimination based on sex, which it limits

to ‘‘the rental of sleeping accommodations provided

by associates and organizations which rent all such

sleeping accommodations on a temporary or permanent

basis for the exclusive use of persons of the same sex

or . . . separate bathrooms or locker rooms based on

sex.’’ See footnote 1 of this opinion.

It is undisputed that the defendants’ gyms are

‘‘place[s] of public accommodation’’ within the meaning

of § 46a-64 (a) (1). It is also undisputed that the defendants’ provision of women’s only workout areas constitutes a ‘‘discriminatory practice’’7

in violation of that

subsection unless it is subject to a statutory exception,

which is the focus of our analysis in this appeal.

The legislature enacted the bathroom and locker

room exceptions set forth in § 46a-64 (b) (1) as No.

94-238, § 4, of the 1994 Public Acts (P.A. 94-238). In

determining the commonly approved usage of the terms

‘‘bathroom’’ and ‘‘locker room,’’ we look to their dictionary definitions. See, e.g., State v. Panek, supra, 328

Conn. 229. Contemporary to the passage of the 1994

amendment to § 46a-64, ‘‘bathroom’’ was defined as ‘‘a

room equipped for taking a bath or shower . . . toilet

. . . .’’ Random House Unabridged Dictionary (2d Ed.

1993) p. 177. ‘‘Locker room’’ was defined as ‘‘a room

containing lockers, as in a gymnasium, factory, or

school, for changing clothes and for the storage and

safekeeping of personal belongings.’’ Id., p. 1128. The

parties do not proffer alternative meanings for these

terms or suggest that the women’s only workout areas

fit within the plain meaning of those definitions as a

factual matter.8 Accordingly, we conclude that the

exceptions set forth in § 46a-64 (b) (1) plainly and unambiguously do not encompass the women’s only workout

areas for purposes of the § 1-2z analysis.

Because the women’s only workout spaces do not

fall under an express exception, the defendants ask us

to interpret § 46a-64 (b) (1) to include a third, implicit
exception to the prohibition against sex based discrimination, namely, a broad gender privacy exception. The

defendants argue that such an exception is implied by

the bodily privacy interests that the enumerated exceptions protect and that the inclusion of a third exception

would be consistent with other portions of the statutory

scheme. The defendants further rely on General Statutes § 46a-60 (b) (1),9 which provides for an exception

to the general ban on sex discrimination in employment

when sex constitutes a bona fide occupational qualification (BFOQ) for a position. The defendants ask us to

read the statutes in relation to one another and to conclude that the inclusion of the BFOQ defense in the

context of employment discrimination evidences a legislative intent to include an implied gender privacy

exception to the ban on discrimination in public accommodations. We disagree with this reading of § 46a-64

(b) (1).

It is well established ‘‘that the legislature, in amending

or enacting statutes, always [is] presumed to have created a harmonious and consistent body of law . . . .’’

(Internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 709, 998 A.2d 1 (2010). Declining

to read a BFOQ like exception into § 46a-64 (b) (1) does

not render it inconsistent with § 46a-60 (b) (1). Had the

legislature intended to include a third exception to the

general ban on sex based discrimination in public accommodations, it could have done so. Indeed, the legislature’s inclusion of a BFOQ exception in § 46a-60 (b) (1)

demonstrates that the legislature could have provided

such an exception in the public accommodation statute

but consciously elected not to do so. See, e.g., DeNunzio v. DeNunzio, 320 Conn. 178, 194, 128 A.3d 901 (2016)

(common principle of statutory construction is that,

when legislature expresses list of items, exclusion of

particular item is deliberate); Stafford v. Roadway, 312

Conn. 184, 194, 93 A.3d 1058 (2014) (‘‘[i]t is a well settled

principle of statutory construction that the legislature

knows how to convey its intent expressly . . . or to

use broader or limiting terms when it chooses to do

so’’ (citation omitted; internal quotation marks omitted)). As this court stated more than thirty years ago,

‘‘[a] review of our labor legislation discloses that our

General Statutes treat employment discrimination separately from public accommodation discrimination. We

deem it especially significant that only the former statute contains an express exception for a ‘bona fide occupational qualification or need’ . . . [in concluding that]

[o]ur public accommodation statute . . . gives no indication that it was intended to encompass the proffer

of services within its definition of discriminatory

accommodation practices. The absence of a statutory

exception for a ‘bona fide occupational qualification or

need’ in the text of [the public accommodation statute]

is more consistent with a legislative intent to leave

such practices to be regulated by statutes that address
employment discrimination rather than by statutes

directed to discrimination in public accommodations.’’

(Citations omitted.) Quinnipiac Council, Boy Scouts

of America, Inc. v. Commission on Human Rights &

Opportunities, 204 Conn. 287, 302, 528 A.2d 352 (1987);

see id., 302–303 (denying woman opportunity to serve

as scoutmaster of Boy Scout troop did not deprive her

of ‘‘accommodation’’ on basis of sex).

Declining to import a gender privacy exception into

§ 46a-64 is consistent with the maxim that ‘‘remedial

statutes should be construed liberally in favor of those

whom the law is intended to protect,’’ but exceptions

to those statutes ‘‘should be construed narrowly.’’

(Internal quotation marks omitted.) Fairchild Heights,

Inc. v. Dickal, 305 Conn. 488, 502, 45 A.3d 627 (2012);

see Thibodeau v. Design Group One Architects, LLC,

260 Conn. 691, 715, 802 A.2d 731 (2002) (‘‘recogniz[ing]

the balance that the legislature has struck between the

state’s dual interest’’ in broadly prohibiting sex discrimination and narrowly exempting small employers); Gay

& Lesbian Law Students Assn. v. Board of Trustees,

236 Conn. 453, 473–74, 673 A.2d 484 (1996) (‘‘provisos

and exceptions to statutes are to be strictly construed

with doubts resolved in favor of the general rule rather

than the exception and . . . those who claim the benefit of an exception under a statute have the burden of

proving that they come within the limited class for

whose benefit it was established’’ (internal quotation

marks omitted)). Particular caution is warranted in the

construction of exceptions to antidiscrimination laws

because a broad construction poses the risk of swallowing the rule. See, e.g., Commission on Human

Rights & Opportunities v. Sullivan Associates, 250

Conn. 763, 788–89, 739 A.2d 238 (1999) (concluding that

‘‘ ‘insufficient income’ ’’ exception to Fair Housing Act

under General Statutes § 46a-64c (b) (5) does not categorically exclude tenants receiving section 8 assistance

but, instead, receives ‘‘[a] narrow construction . . .

[that] affords a landlord an opportunity to determine

whether, presumably for reasons extrinsic to the section 8 housing assistance calculations, a potential tenant lacks sufficient income to give the landlord reasonable assurance that the tenant’s portion of the stipulated

rental will be paid promptly and that the tenant will

undertake to meet the other obligations implied in the

tenancy’’).

In this vein, we address the argument of the defendants and interfaith amici; see footnote 5 of this opinion;

that a conclusion that the statutory text plainly and

unambiguously lacks a gender privacy exception will

lead to absurd or bizarre results by eliminating other

women’s only spaces and impeding the religious freedom of women seeking to use those facilities.10 They

rely on the prediction of the referee and the trial court

that, if the statute’s exceptions were construed strictly,

the provision of separate showers, dressing rooms, lac-
tation rooms, domestic violence shelters, and hospital

rooms would constitute a violation of the statute. We

disagree. First, although such facilities are not at issue

in this appeal, it is not at all clear that they would not fall

within the existing statutory exceptions for bathrooms,

locker rooms, and sleeping accommodations, as interpreted using our rules of statutory construction. See

General Statutes § 46a-64 (b) (1) and (2). Second, even

if we were to assume, without deciding, that restricting

the facilities identified by the referee and the trial court

to women constitutes impermissible discrimination and

that such a result is indeed absurd,11 thus permitting

resort to the legislative history of § 46a-64 (b) (1), that

legislative history does not support the defendants’ argument. See, e.g., State v. Bischoff, 337 Conn. 739, 746,

258 A.3d 14 (2021) (‘‘[o]nly if we determine that the

statute is not plain and unambiguous or yields absurd

or unworkable results may we consider extratextual

evidence of its meaning such as the legislative history

and circumstances surrounding its enactment’’ (internal

quotation marks omitted)). Instead, it indicates that the

legislature has rejected the concept of abstract notions

of gender privacy in favor of a more narrowly cabined

exception when warranted.

As we noted previously, the bathroom and locker

room exception in § 46a-64 (b) (1) was enacted in 1994

as § 4 of P.A. 94-238, which was first introduced as

Substitute House Bill No. 5606. In his written testimony

before the Judiciary Committee in support of Substitute

House Bill No. 5606,12 then Attorney General Richard

Blumenthal described the bill as intended to ‘‘clarif[y]

that the prohibition against discrimination based on sex

does not mean that places of public accommodations

such as gyms, bars, and restaurants cannot provide

separate bathroom and locker room facilities. Although

this is common sense, it is not clear that such an

exception exists in the current statute.’’ (Emphasis

added.) Written testimony from Richard Blumenthal,

Attorney General, submitted to the Joint Committee on

Judiciary, Connecticut General Assembly (March 11,

1994);13 see 37 H.R. Proc., Pt. 20, 1994 Sess., p. 7240,

remarks of Representative Richard D. Tulisano (‘‘this

section . . . makes it clear that it’s not illegal under

the public accommodations act to have separate bathrooms in locker rooms for men and women’’). The originally raised House Bill No. 5606 was expressly intended

to allow ‘‘the provision of separate facilities for males

and females where privacy concerns exist’’; it would

have exempted from the act ‘‘the provision of bathroom

and locker room facilities based on considerations of

privacy and modesty.’’ (Emphasis added.) Raised Bill

No. 5606, 1994 Sess., § 1. During testimony on House Bill

No. 5606 before the Judiciary Committee, Commission

Counsel Philip A. Murphy, Jr., representing the commission, criticized the drafting of this proposed exception

for its potential to ‘‘be interpreted too broadly and . . .
[to] cause needless litigation.’’ Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 2, 1994 Sess., p. 513.

In his written testimony, Murphy urged that the ‘‘section

[of the raised bill] be deleted or substantially rewritten,’’

arguing that ‘‘the exception is so broad that it will result

in the exception swallowing the discriminatory practice. Thus a public accommodation that wishes to serve

only men can decline to provide women’s restrooms or

locker rooms and claim that it does not have to serve

women because of ‘privacy and modesty’ concerns.’’

Id., p. 591. Subsequently, the substitute bill, which was

ultimately enacted as Public Act No. 94-238, addressed

this criticism by eliminating the potentially problematic

‘‘considerations of privacy and modesty’’ language in

favor of the more simple exception for ‘‘separate bathrooms or locker rooms based on sex.’’ Substitute House

Bill No. 5606, 1994 Sess., § 1. Our legislature elected,

therefore, to address an application of the sex discrimination prohibition that might be inconsistent with ‘‘common sense,’’ by using simpler terms, rather than qualifying the prohibition with reference to the subjective

morass of ‘‘modesty’’ and ‘‘privacy’’ urged by the defendants and the amici. See In re Valerie D., 223 Conn.

492, 518 n.19, 523, 613 A.2d 748 (1992) (noting that court

ordinarily does not consider legislature’s failure to act

but considering ‘‘limited circumstances’’ of legislature’s

rejection of one bill and immediate adoption of competing bill ‘‘in its stead’’ as evidence of legislative intent);

see also Rainbow Housing Corp. v. Cromwell, 340

Conn. 501, 519 n.10, A.3d. (2021).

Consistent with the concerns of the commission in

advocating for the enactment of a bathroom and locker

room exception that did not include vague language

allowing for the ‘‘consideration of privacy and modesty,’’ we observe that a reading of § 46b-64 (b) (1) to

imply a gender privacy exception, although presumably

to benefit women, could also negatively affect the rights

of women in a different way. As discussed in the amicus

briefs filed by the Quinnipiac University School of Law

Legal Clinic, the American Civil Liberties Union of Connecticut, and the GLBTQ Legal Advocates & Defenders,

Lambda Legal Education and Defense Fund, Inc., and

the Connecticut Transadvocacy Coalition, such an

exception could be invoked to exclude women based

on the privacy interests of men and could justify discrimination against transgender individuals because

some customers, ‘‘due to modesty, find it uncomfortable’’ to be around such people. Livingwell (North),

Inc. v. Pennsylvania Human Relations Commission,

147 Pa. Commw. 116, 121, 606 A.2d 1287, appeal denied,

533 Pa. 611, 618 A.2d 401 (1992); see id., 121–22 (‘‘The

privacy interest expressed involves situations [in which]

the customers, due to modesty, find it uncomfortable

to have the opposite sex present because of the physical

condition in which they find themselves or the physical

activity in which they are engaged as customers at the
business entity. These customers would be embarrassed or humiliated if cared for or observed by members of the opposite sex.’’). Such a result of potentially

limiting the access of women and transgender people

access to spaces on the basis of the privacy interests

of men or the ‘‘moral comfort’’ of customers defeats

the purpose of our state’s antidiscrimination legislation.

See, e.g., Corcoran v. German Social Society Frohsinn,

Inc., 99 Conn. App. 839, 843–44, 916 A.2d 70 (noting

legislative intent to broaden rather than limit scope of

§ 46a-64), cert. denied, 282 Conn. 910, 922 A.2d 1098

(2007).

Nevertheless, we acknowledge that our analysis of

the plain and unambiguous statutory text of § 46a-64

may lead to a result that might well have been unintended by the legislature, including with respect to its

application in hypothetical scenarios involving lactation

rooms or dressing rooms, as posited by the defendants,

the referee, and the trial court. See footnotes 10 and

11 of this opinion and accompanying text. As the United

States Supreme Court recently noted in construing the

language ‘‘because of sex’’ in Title VII of the Civil Rights

Act of 1964 to apply to employment discrimination

against homosexual or transgender persons, this effect

is not a reason to depart from the plain and unambiguous statutory text of § 46a-64. See Bostock v. Clayton

County, U.S. , 140 S. Ct. 1731, 1737, 207 L. Ed.

2d 218 (2020) (‘‘Those who adopted the Civil Rights Act

might not have anticipated their work would lead to

this particular result. Likely, they weren’t thinking about

many of the [Civil Rights] Act’s consequences that have

become apparent over the years, including its prohibition against discrimination on the basis of motherhood

or its ban on the sexual harassment of male employees.

But the limits of the drafters’ imagination supply no

reason to ignore the law’s demands.’’); see also id., 1749

(‘‘the fact that [a statute] has been applied in situations

not expressly anticipated by Congress does not demonstrate ambiguity; instead, it simply demonstrates [the]

breadth of a legislative command’’ (internal quotation

marks omitted)). The purpose of the Public Accommodation Act is to provide all sexes ‘‘full and equal accommodations in any place of public accommodation

. . . .’’ General Statutes § 46a-64 (a) (1). This purpose

is not frustrated by a broad reading of the statutory

language of § 46a-64 (a) or a narrow construction of the

exceptions provided under subsection (b) of the statute.

Thus, the sensitivity of the determination of where

to limit antidiscrimination protections, along with

evolving contemporary understandings of the terms

‘‘gender’’ and ‘‘sex’’; see footnote 2 of this opinion; renders this issue uniquely well suited for consideration

in the first instance by the legislature, which is the

policy-making branch of our government. See, e.g., Thibodeau v. Design Group One Architects, LLC, supra,

260 Conn. 715 (recognizing policy-making role of legis-
lature in context of sex discrimination); see also Fay

v. Merrill, 338 Conn. 1, 51–52, 256 A.3d 622 (2021)

(‘‘[g]iven the reasonable policy concerns that support

the parties’ respective state constitutional arguments,

in interpreting our state’s constitution, we must defer

to the legislature’s primary responsibility in pronouncing

the public policy of our state’’ (internal quotation marks

omitted)); State v. Lockhart, 298 Conn. 537, 574, 4 A.3d

1176 (2010) (The court declined to adopt a state constitutional rule requiring the recording of custodial interrogations because, although the rule would likely be beneficial, ‘‘[d]etermining [its] parameters . . . requires

weighing competing public policies and evaluating a

wide variety of possible rules. . . . In [the court’s]

view, such determinations are often made by a legislative body because it is in a better position to evaluate

the competing policy interests at play . . . .’’ (Citation

omitted.)).

We therefore conclude that the defendants’ gyms are

places of public accommodation that have denied the

complainants full and equal accommodations on the

basis of their sex. We further conclude that that denial

does not fall within an exception expressly provided for

in § 46a-64 (b) (1), rendering the practice of maintaining

women’s only workout areas within an otherwise public

gym a violation of the Public Accommodation Act.

The judgment is reversed and the case is remanded

with direction to render judgment sustaining the commission’s administrative appeal.

In this opinion the other justices concurred.

* January 25, 2022, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 General Statutes § 46a-64 provides in relevant part: ‘‘(a) It shall be a

discriminatory practice in violation of this section: (1) To deny any person

within the jurisdiction of this state full and equal accommodations in any

place of public accommodation, resort or amusement because of race, creed,

color, national origin, ancestry, sex, gender identity or expression, marital

status, age, lawful source of income, intellectual disability, mental disability,

physical disability, including, but not limited to, blindness or deafness, or

status as a veteran, of the applicant, subject only to the conditions and

limitations established by law and applicable alike to all persons; (2) to

discriminate, segregate or separate on account of race, creed, color, national

origin, ancestry, sex, gender identity or expression, marital status, age, lawful

source of income, intellectual disability, mental disability, learning disability,

physical disability, including, but not limited to, blindness or deafness, or

status as a veteran . . . .

‘‘(b) (1) The provisions of this section with respect to the prohibition of sex

discrimination shall not apply to (A) the rental of sleeping accommodations

provided by associations and organizations which rent all such sleeping

accommodations on a temporary or permanent basis for the exclusive use

of persons of the same sex or (B) separate bathrooms or locker rooms

based on sex. . . .’’

2 For purposes of this opinion, we describe the claim at issue as ‘‘sex

discrimination’’ because that is the nature of the claim as raised and

described by the complainants. This description is consistent with this

court’s general practice of accepting the parties’ characterization of the

nature of the discrimination at issue. See, e.g., Spiotti v. Wolcott, 326 Conn.

190, 193, 163 A.3d 46 (2017) (considering complainant’s allegations of sex

discrimination). We do, however, recognize that the terms ‘‘sex’’ and ‘‘gender’’ are not specifically defined by the statutory scheme and that the understanding of them has evolved over time. See, e.g., R. Oliveri, ‘‘Sexual Orientation and Gender Identity Discrimination Claims Under the Fair Housing Act
After Bostock v. Clayton County,’’ 69 U. Kan. L. Rev. 409, 423–25 (2021).

Resolution of this appeal does not, however, require us to delve further into

the definitions of the terms ‘‘sex’’ or ‘‘gender,’’ as used in the statutory

scheme.

3 The commission appealed from the judgment of the trial court to the

Appellate Court, and we subsequently transferred the appeal to this court

pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

4

‘‘Due to unusual procedures applicable to proceedings before the commission, in this administrative appeal, the commission is named as both a

plaintiff (in its own capacity) and as a defendant (in its capacity as the

agency under which the . . . referee issued the decision from which the

commission appealed). See General Statutes § 46a-94a.’’ Commission on

Human Rights & Opportunities v. Echo Hose Ambulance, 322 Conn. 154,

157 n.1, 140 A.3d 190 (2016). Likewise, the complainants before the commission, Alex Chaplin and Daniel Brelsford, were named as defendants in the

administrative appeal, but they did not participate therein. Accordingly,

unless otherwise indicated, all references herein to the defendants are to

Edge Fitness and Club Fitness, collectively.

5 We note that, on March 2, 2021, we invited amici curiae to file briefs to

address the following question: ‘‘In this administrative appeal, did the trial

court and the [referee] properly determine that the provision of [women’s]

only workout areas by the defendant gyms did not violate . . . § 46a-64 (a)

and its prohibition against sex discrimination in public accommodations?’’

The following amici curiae accepted our invitation and filed briefs: (1)

the Jewish Federation of Greater Hartford, the Muslim Coalition of Connecticut, and other religious organizations (collectively, interfaith amici); (2) the

Quinnipiac University School of Law Legal Clinic; (3) the GLBTQ Legal

Advocates & Defenders, Lambda Legal Education and Defense Fund, Inc.,

and the Connecticut Transadvocacy Coalition; and (4) the American Civil

Liberties Union of Connecticut. We are grateful to the amici for their thoughtful advocacy in response to our invitation for briefs.

6 We note that the commission also argues that Edge Fitness failed to

plead the customer gender privacy exception before the referee and, therefore, waived the defense. We disagree. As the trial court observed in rejecting

this claim, (1) ‘‘these matters were consolidated and tried as one matter,’’

(2) ‘‘the formal requirements of pleading do not apply in administrative

proceedings,’’ (3) ‘‘these two issues were in fact specifically raised at the

hearing, tried, and reflected in the [referee’s] decision,’’ (4) ‘‘issues such as

the appropriateness of pleadings and evidentiary rulings in an administrative

[proceeding] are reviewed on appeal . . . on an abuse of discretion basis,’’

(5) ‘‘the issue presented in this matter is an important issue that has ramifications beyond the parties,’’ and (6) ‘‘issues such as gender privacy and religious rights are legal principles that are naturally intertwined with a defense

against the discrimination alleged.’’ See generally Presidential Village, LLC

v. Phillips, 325 Conn. 394, 412 n.15, 158 A.3d 772 (2017) (‘‘[t]he fundamental

purpose of a special defense, like other pleadings, is to apprise the court

and opposing counsel of the issues to be tried, so that basic issues are not

concealed until the trial is underway’’ (internal quotation marks omitted)).

We therefore agree with the trial court’s conclusion that Edge Fitness did

not waive the special defense, which was raised and argued during the

administrative proceeding, because the commission was on notice of it.

7 We note that, for purposes of the Public Accommodation Act, the legislature defines the term ‘‘discrimination’’ as ‘‘includ[ing] segregation and separation . . . .’’ General Statutes § 46a-51 (6); see also General Statutes § 46a51 (8) (defining ‘‘discriminatory practice’’ as, inter alia, ‘‘a violation of’’ § 46a64). The statutory scheme does not, however, define the terms ‘‘segregate,’’

‘‘segregation,’’ ‘‘separate,’’ or ‘‘separation.’’ Looking to the dictionary for the

common usage of those terms; see, e.g., State v. Panek, supra, 328 Conn.

229; we observe that Merriam Webster’s Collegiate Dictionary defines the

term ‘‘segregate’’ as ‘‘to separate or set apart from others or from the general

mass: isolate . . . .’’ Merriam Webster’s Collegiate Dictionary (10th Ed.

1993) p. 1058. Similarly, the term ‘‘segregation’’ refers to the ‘‘act or process

of separation’’; Black’s Law Dictionary (6th Ed. 1990) p. 1358; or to ‘‘the

separation or isolation of a race, class, or ethnic group by . . . divided

educational facilities, or other discriminatory means . . . .’’ Webster’s Third

New International Dictionary (1961) p. 2057; accord Merriam Webster’s

Collegiate Dictionary, supra, p. 1058; see also Sheff v. O’Neill, 238 Conn. 1,

28 and n.31, 678 A.2d 1267 (1996) (similarly defining term ‘‘segregation,’’ as

used in article first, § 20, of state constitution). The term ‘‘separate’’ is

defined as ‘‘set or kept apart,’’ ‘‘not shared with another: INDIVIDUAL,
SINGLE,’’ ‘‘AUTONOMOUS, INDEPENDENT,’’ and ‘‘DISTINCT, DIFFERENT . . . .’’ Webster’s Third New International Dictionary, supra, p. 2069;

see also Merriam Webster’s Collegiate Dictionary, supra, p. 1067 (defining

‘‘separate’’ as ‘‘set or kept apart’’ and ‘‘existing by itself’’). These definitions

plainly and unambiguously prohibit, without qualification, any isolation,

separation or keeping apart ‘‘on account of sex,’’ within a ‘‘public accommodation,’’ and do not by themselves account for isolation, separation or keeping apart to protect or advantage a class of people that might be deemed

to need or deserve protection or advantage, as the defendants argue with

respect to the salutatory effects of women’s only fitness facilities. Cf. General

Statutes § 46a-64 (b) (2) (prohibition on age discrimination ‘‘shall not apply

to minors or to special discount or other public or private programs to

assist persons sixty years of age and older’’).

8 We note that it is undisputed that the women’s only workout areas at

issue in this appeal do not fall within the plain meaning of the statutory

terms ‘‘bathroom’’ or ‘‘locker room.’’ More specifically, the record indicates

that the women’s only workout areas in each facility are separated from

the larger portions of the gyms by doors with blinds and branding, as well

as by walls without windows. The women’s only areas are small relative to

the rest of the facilities and, therefore, contain a lesser amount of the same

equipment. There is no indication in the record that either of the women’s

only workout areas at issue contain showers, toilets, lockers, or any other

feature associated with a bathroom or locker room.

9 General Statutes § 46a-60 (b) (1) provides in relevant part: ‘‘It shall be

a discriminatory practice in violation of this section . . . [f]or an employer,

by the employer or the employer’s agent, except in the case of a bona fide

occupational qualification or need, to refuse to hire or employ or to bar or

to discharge from employment any individual or to discriminate against

such individual in compensation or in terms, conditions or privileges of

employment because of the individual’s . . . sex . . . .’’

10 We note that no constitutional claim has been raised in this appeal.

Thus, we do not consider the implications that § 46a-64 may have in relation

to constitutional provisions and statutory safeguards such as the Connecticut

Act Concerning Religious Freedom. See General Statutes § 52-571b. We leave

these questions, including any gloss necessary to save § 46a-64 (a) from

constitutional jeopardy, for another day, in a case that squarely presents

them. See Bostock v. Clayton County, U.S. , 140 S. Ct. 1731, 1753–54,

207 L. Ed. 2d 218 (2020) (declining to address ‘‘[the employers’] fear that

complying with Title VII’s requirement [as to not discriminating against

homosexual or transgender persons] may require some employers to violate

their religious convictions’’ because ‘‘how [the] doctrines protecting religious

liberty [namely, the first amendment and the Religious Freedom Restoration

Act of 1993, 42 U.S.C. § 2000bb et seq.] interact with Title VII [is a question]

for future cases’’ given lack of religious liberty claim); see also Fay v. Merrill,

338 Conn. 1, 21 n.18, 256 A.3d 622 (2021) (noting ‘‘the general rule that

[c]onstitutional issues are not considered unless absolutely necessary to

the decision of a case’’ (internal quotation marks omitted)).

11 We may consider hypothetical scenarios beyond the facts of the case

before us in determining whether a construction of the plain language of a

statute will lead to an absurd result. See, e.g., State v. Brown, 310 Conn.

693, 708–709, 80 A.3d 878 (2013) (determining that interpretation of special

parole statute created absurd results on basis of hypothetical factual scenarios ); State v. Gelormino, 291 Conn. 373, 383–84, 968 A.2d 379 (2009) (considering but rejecting defendant’s argument that plain and unambiguous language of mandatory minimum sentencing statute yielded absurd result when

considered in context of hypothetical fact patterns).

12 ‘‘[I]t is now well settled that testimony before legislative committees

may be considered in determining the particular problem or issue that the

legislature sought to address by the legislation. . . . This is because legislation is a purposive act . . . and, therefore, identifying the particular problem

that the legislature sought to resolve helps to identify the purpose or purposes for which the legislature used the language in question.’’ (Internal

quotation marks omitted.) In re Elianah T.-T., 326 Conn. 614, 625–26 n.10,

165 A.3d 1236 (2017); see, e.g., Hatt v. Burlington Coat Factory, 263 Conn.

279, 314–15, 819 A.2d 260 (2003).

13 We note that the written testimony of then Attorney General Blumenthal

is not contained in the printed record of the Joint Standing Committee

Hearings but is included in the legislative bill file available in the Connecticut

State Library.