Michigan Appellate Court Sends Portion of Locker Room Case Back to Lower Court

By Jon Davidson • August 1, 2018 • 12:06 pm

In 2015, a woman named Yvette Cormier entered the women’s locker room at her local Planet Fitness gym in Midland, Michigan. Upset that another gym member who is transgender was in the locker room, Cormier complained at the front desk. She was told the gym has a policy that customers may use the facilities that correspond to the sex with which they identify. She also was warned that she had to abide by that policy or have her membership terminated. Notwithstanding the warning, Cormier returned to the gym several times in the ensuing days to tell other women about the policy and that they should be careful when using the women’s facilities. Because her disruptive conduct violated her contract with the gym, it terminated her membership. In response, she sued the gym in state court for invasion of privacy, sexual harassment and retaliation in violation of the state’s civil rights law, breach of contract, intentional infliction of emotional distress, and violation of Michigan’s Consumer Protection Act.

The trial court ruled that all of Cormier’s claims were legally insufficient and dismissed her case. She appealed, and the state intermediate court of appeals fully affirmed that ruling. Cormier then asked the state supreme court to hear her appeal and it agreed with the lower courts on all counts but one, telling the court of appeals to reconsider Cormier’s Consumer Protection Act claims. On July 26, 2018, that court ruled that the trial court should reconsider a portion of those claims. Without deciding whether the Consumer Protection Act was violated, the court of appeals held that Cormier had adequately alleged that she should have been told about the gym’s policy, especially since she was told that there were separate locker rooms and restrooms for men and women and she appeared to be claiming that she would not have joined the gym had she been told about the gym’s transgender-affirming policy. The case will now proceed in the trial court to consider those claims, for which Cormier has sought at least $25,000 in damages.

The July 26th decision has been misreported in numerous news stories and blogs as having held that the Planet Fitness franchise breached its contract and violated the state Consumer Protection Act by allowing a transgender woman to use its women’s locker room. That is not accurate. The court simply held that Cormier can try to prove that the franchise should have told her of their policy before she joined the gym. While it is troubling that Cormier is going to be allowed to continue her legal attack on the franchise—which was doing the right thing by respecting the identity of all of its customers—the decision should not be painted as worse than it actually is.

Moreover, even if Cormier were to prevail, it would simply mean that businesses should be clearer up front about who gets to use which of their facilities. Having businesses prominently announce that they allow customers to use single-sex facilities that align with their gender identity (as some companies, like Target, have done) would not be a terrible result; it could help transgender individuals know they are welcome and assist them if they are challenged for using the facilities that make sense for them. And, while some businesses might decide not to adopt a policy like Planet Fitness’s, those businesses might themselves face suit by transgender customers on the same theory Cormier is advancing if they don’t disclose in advance that they won’t allow those customers to use the facilities that accord with their gender identity. In addition, in states that prohibit gender identity discrimination in public places (as Michigan’s state Civil Rights Commission has ruled is true of that state), businesses could be sued if they enforce a transgender-exclusionary policy.

Several news and social media accounts also blared that the appellate court further ruled that transgender women are not women. That also is inaccurate. The unpublished (and therefore non-precedential) opinion does use ill-considered language, referring to the individual Cormier encountered in the locker room as “a man who identified as a woman” and several times referencing “assigned men who self-identify as women,” but the decision does not contain any actual holding about what the legal sex of transgender individuals is. Hopefully, when the lower court reconsiders, the trial court will be more careful about terminology and also will rule that businesses do not have an obligation to cater to the imaginary fears of some transphobic customers by being required to disclose in advance that they allow transgender people to use the facilities that conform to their gender identity, something numerous transgender people have done, without incident, for decades.

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