Volume 96, No. 3, Summer 2024
By Tess Frydman

Many public accommodation acts (PAAs) allow for the weaponization of civil rights law by socially and economically dominant groups. For a manageable scope, this Comment focuses on the use of PAAs to hinder gender equity. PAAs fail to engage with the reality that women, trans, queer, and nonbinary persons are systemically disadvantaged by a cultural hierarchy that privileges cisgender males over those with other gender identities. The PAAs perpetuate inequity by failing to distinguish between remedial actions and bigoted actions. By providing the most privileged with the same protections as the most vulnerable, PAAs preclude the creation of safe public spaces for vulnerable populations, under the guise of preventing “discrimination.” Yet safe public spaces are necessary for rectifying the effects of a long history of gendered oppression, underinclusiveness, and imbalanced public health. Systemically oppressed groups need to feel safe in public spaces to ensure that these individuals can fairly access public amenities and to improve gender equity in America.

In lieu of sweeping legislative change, courts must find another way to ensure people are treated fairly under the PAAs. Courts must not subvert the progressive intention of the PAAs by allowing plaintiffs to use them to diminish the safety of vulnerable groups. To empower courts to prevent such misuse of the PAAs, this Comment suggests the adoption of a stricter view of standing in cases in which plaintiffs allege to be harmed by discriminatory actions that are remedial in nature.

This Comment begins in Part II.A with an overview of state PAAs, and reveals that they do not improve the equitable use of public accommodations. Part II.B examines the current inequity among the sexes. Part II.C shows how that inequity is disguised by the legal illusion of the equality of the sexes. Part II.D analyzes Commission on Human Rights & Opportunities v. Edge Fitness, a case in which the plain language of Connecticut’s PAA limited the court’s ability to provide a just remedy to a reported violation that was remedial in purpose and effect.10 Part III.A unpacks what the Edge Fitness court got wrong, specifically how the focus on privacy is misplaced and how safety is the more pressing justification for PAA exceptions. Part III.B discusses the value of careful scrutiny for PAA violations. And Part III.C proposes a new judicial approach to PAA violation cases involving remedial actions: the PAA Standing Test.

The proposed PAA Standing Test is a three-part test which would have courts weigh the injury caused by the PAA violation against the injury prevented by the violative action, thus giving new weight to the previously overlooked harm being remedied: the harm of systemic inequity, be it sexism, transphobia, or some other systemic prejudice. For a plaintiff to be successful, he must plausibly allege that his harm outweighs the harm being remedied by the violative action. 

This Comment concludes that to ensure the advancement of gender equity, courts must adopt a different approach to PAA litigation. By using the proposed PAA Standing Test, courts could better balance the interests involved in PAA litigation to ensure that gender inequities, currently obscured by the concept of legal equality of the sexes, can be remedied. By implementing a more thoughtful standing analysis for PAA claims, the courts can improve gender equity (alongside other inequities) in America.