Sunday, September 27, 2015

Day In Court

Awhile back I wrote about an incident at Planet Fitness (here and here) where a woman complained about a trans women in the locker room and the gym took away her membership. Well the case is starting to be heard in court.
Judge questions sexual harassment claim in Planet Fitness transgender policy case
By Jessica Shepherd
September 25, 2015

MIDLAND, MI — It's still unknown whether a Midland County judge will dismiss a lawsuit brought against Planet Fitness that focuses on the fitness chain's transgender locker room policy.

During a hearing Friday, Sept. 25, Midland County Circuit Court Judge Michael J. Beale asked many questions of attorneys for both the plaintiff and defendants before taking a motion to dismiss under advisement.
Cormier's lawsuit claims invasion of privacy, multiple violations of the Elliott-Larsen Civil Rights Act, breach of contract, intentional infliction of emotional distress, exemplary damages and a violation of the Michigan Consumer Protection Act. The hearing Friday sought to decide if those claims are valid, following the recent filing of motions for summary disposition by both defendants, who claim all nine parts of the lawsuit are invalid and should be dismissed.
The judge questioned if the Elliott-Larsen Act applies to this case. The Elliott-Larsen Act is Michigan’s non-discrimination law and the law says,
Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment, public accommodations or public services, education, or housing.
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.
So he is trying to figure out if Planet Fitness policy causes sexual harassment.
Since the lawsuit does not include a claim that Cormier experienced any behavior of a sexual nature during her time at Planet Fitness, Beale asked Kallman how the Elliott-Larsen Act could apply, as far as counts of sexual harassment are concerned.

"Women and men being naked together in the same locker room, taking showers and doing all this and they're saying that doesn't have any component of a sexual nature to it," Kallman said.

"You don't have those facts in this case," Beale replied.

Kallman said "we don't have to wait for that to occur" and that the transgender-friendly locker room policy itself is "sexual in nature by allowing men in the women's locker room."

Beale came back to the threshold required for sexual harassment claims several times and Kallman continued to respond by saying the policy itself is sexual in nature and that no actual sexual incidents needed to occur for that to meet the threshold.

"It has to be sexual in nature," Beale retorted. "The conduct or communication must be sexual in nature."
Does the case meet the standard of the Elliott-Larsen Act? I see two big questions here. First is does gender identity determine sex? In other words are we women and men? And second does the possibility of sexual harassment constitute sexual harassment, because there never was any type of sexual contact or harassment, it was just the fact that there was a trans woman in the locker room that she is claiming is sexual harassment.

Another thing to remember, the Michigan legislature is hearing a bill to add sexual orientation and gender identity and expression to the Elliott-Larsen Act, coincident?

So like any court case, it is a crap shoot how the judge will rule.

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