Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2), 2005 BCHRT 359
Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 3), 2006 BCHRT 557
hmmm, so this is what I got from the link...
 Dr. Creese said that many women have a “problematic relationship with their own bodies due to a poor self image”. This is because the dominate cultures of many Western societies, including Canada, tend to define female beauty within a limited range of norms, with an emphasis on thinness and certain beauty characteristics. Such body images are reinforced by the media. Women often turn to compulsive dieting and sometimes to plastic surgery. As a result of these body issues, women often curtail their physical 13
activity in public spaces. In this respect, women would feel that there bodies were subject to “public display” if they worked out in a co-ed gym. They would be uncomfortable, unduly self-conscious and might avoid working-out altogether.
 Dr. Creese said that men do not experience poor body image in the same way, or to the same extent, as women. How a man looks is not as important in defining their masculinity, although they are affected by the images they see in the media about men. For men, it is what they accomplish in other parts of their lives, such as their economic successes and the amount of power and authority they have in their workplace that are more important than their appearance. Dr. Creese said that if women had more economic security, or if there was a change in the general power dynamics between men and women, then women’s self-body image might not be a problem.
 Dr. Creese described the male gaze as one that contains an assessment or appraisal of a woman, which is different from how women look at each other. The male gaze is not just about assessing the positive attributes of a women; it might also convey that the fact that the woman is not “measuring-up”. Dr. Creese described the male gaze as being a form of “power”. Women generally do not sexualize how they look at other women but men often do. Women live in a world where they constantly experience a power differential. There are times when women will gaze at other women but, given that there is not the same power differential between two women as opposed to between a woman and a man, the impact is different. Dr. Creese agreed that not all men engage in the male gaze and not all men feel that they are more powerful than others, including women. Men also assess other men.Ok, I kinda want to slap this expert witness.
 Ms. Chang likes working out with other women; these women cross all age groups and they are not self-conscious about being there, despite their weight or physical abilities. The women were doing the best they could and she felt motivated by this; it encouraged her to use the facilities more often. When she worked-out in a co-ed facility she felt pressured to “look good” when she arrived at the gym; she felt that she would be judged by the men otherwise. When she goes to Just Ladies, she goes “as is” and knows that it is not important. She feels comfortable at Just Ladies. She said that although women may show off, it is much less so than at a co-ed gym.SHE felt pressured to look good? UGH. I gotta say, reading this had almost made me side with the dude, rather then the gym
 The determination of whether a distinction amounts to discrimination is to be analyzed in a contextual and purposive manner. Further, in considering whether there has
been violation of the Code, its purposes must be considered. These purposes are set out in s. 3 as follows:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
© to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those personsDoes the barber shop situation fulfill these? I'm not so sure
 Although this assessment is to be done from the perspective of the claimant, it is not sufficient for the claimant to only assert that his or her dignity has been adversely affected by the law in question. The Court said that it must also be satisfied that the claimant’s assertion that he was adversely treated is supported by “an objective assessment of the situation”. In considering all the circumstances, the question that must be asked is whether a reasonable person, in a similar circumstance, would find that the differential treatment had the effect of demeaning his dignity.So applying this to the barber shop situation, does anyone think her being denied had the effect of demeaning her dignity?
 Mr. Stopps is entitled to the Code’s protections based on his sex. The only reason he was denied membership at Just Ladies was because he was a man. Therefore, this step in the prima facie analysis has been met.
 Whether he has suffered some disadvantage that warrants the Code’s protection is an issue I will consider under the second step of the analysis, to which I now turn.
Did Mr. Stopps suffer an adverse effect as a result of Just Ladies’ decision to deny him Membership?
 For the purposes of this complaint only, Just Ladies conceded that it provides a service customarily available to the public.
 Mr. Stopps argues that he was adversely affected by Just Ladies’ decision to deny him a membership and that he was discriminated against in the provision of a service.
 In this respect, it is important to consider the reasons why Mr. Stopps went to Just Ladies. In essence, he says that he wanted to improve his fitness level. He said that Just Ladies was the closest facility to his home that provided the necessary fitness programs and equipment and it had offered a 10-day free membership. He could use the 10-day trial period to determine if Just Ladies met his fitness requirements without incurring any financial costs.
 I accept that Mr. Stopps wanted to improve his level of fitness. Being denied access to a fitness facility might adversely affect his ability to meet this goal. However, he admitted that he had not regularly attended a gym prior to going to Just Ladies and had not sought to join another gym up to the date of the hearing. In my view, this brings into question the bona fides of Mr. Stopps’ reason for going to Just Ladies.Again, applying this to the barber shop, I have to side with the barber.
 I find that Mr. Stopps had no intention of pursuing a fitness program or joining a fitness facility. As a result, he could not have suffered any adverse consequences as a result of being denied a membership at Just Ladies.
 The second reason that Mr. Stopps said he wanted to be a member of Just Ladies was because it was the closest facility to his home. He wanted to be able to walk to the gym as he saw this as part of his workout.
 The evidence was undisputed that Just Ladies was not the closest facility to Mr. Stopps’ residence. Fitness World is actually closer to where Mr. Stopps resides. Mr. Stopps provided no explanation as to why he did not go to Fitness World to see about a membership before going to, or after he had been denied a membership at, Just Ladies. If he wanted a facility close to his home, Fitness World was the closest facility. He should have investigated this option. He did not.
 Mr. Stopps seems to suggest that being denied a 10-day membership results in an adverse consequence to him. I disagree. If there was any adverse consequence, the consequence was minor; it only resulted in Mr. Stopps being denied a 10-day membership. In the circumstances of this case, and in the context of what Mr. Stopps was seeking, namely a membership in a fitness facility, he had other options available to him, which he did not pursue.
 I am unable to conclude that Mr. Stopps experienced an adverse effect in the denial of the membership at Just Ladies such that the protection of the Code should be triggered. Although ultimately he was denied a membership, seen in context, the denial did not adversely affect Mr. Stopps in his ability to participate in a fitness program close to his home at a fee that he could afford. Mr. Stopps was, and is still, able to participate in the social and cultural life of British Columbia. He is able to meet his goal of being fit and join any number of fitness facilities that would serve to meet his particular needs. From a
 Just Ladies argued that it was justified in denying Mr. Stopps a membership in its facility. In so doing, it relies on the three-part test set out in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.),  3 S.C.R. 3 (“Meiorin”) and applied in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 (“Grismer”). In those cases, the Supreme Court of Canada held that to justify conduct, which might otherwise be discriminatory under s. 8 of the Code, a respondent must establish the following:
i) that they adopted a standard for a purpose or goal that is rationally connected to the function being performed;
ii) that they adopted a standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
iii) that the standard they adopted is reasonably necessary to accomplish their purpose or goal, in the sense that they cannot accommodate persons with the characteristics of the claimant without incurring undue hardship. (Grismer at para. 20)i) barber shop fails because she asked for a mans haircut. If she wanted a perm, she would definitely be SOL.ii) again their reason doesn't have anything to do with their businessiii) they might be able to claim this, if they have a lot of Muslim clients...==================================So now we get to the meat and potatoes....
 Just Ladies referred to a number of cases in other jurisdictions that have dealt with issues similar to those raised in this complaint. Although the focus in those decisions was on the issue of “public decency”, these cases illustrate why the maintenance of a women-only facility is reasonably justified under the Code.
 In Livingwell, Inc. v. Pennsylvania Human Relations Com., 147 Pa. Commw. 116 (Commw. Ct. of Penn.), the Pennsylvania Human Relations Commission found that an all-women health club facility, owned by Livingwell, discriminated on the basis of sex when it refused to allow men membership. In reversing the Commission’s decision, the Commonwealth Court of Pennsylvania found that a defence of “customer gender privacy right” was available to Livingwell. In order to avail itself of this defence, Livingwell had to show that admitting men would undermine its business operation, that a protected privacy right existed for women even though intimate body parts were not exposed and that no reasonable alternative existed to protect these privacy interests while accommodating male members.
 In considering what was needed to establish a privacy interest, the Court said that it can arise “where one has a reasonable basis to be protected against embarrassment or suffer a loss of dignity because of the activity taking place”. (p. 7) The uncontraverted evidence of the female members of the club was that the primary reason that they were members was because the facility was women-only. If men were allowed, these women would not maintain their memberships, evidence confirmed by the president of Livingwell. Similar evidence was presented in this case.If its "have a reasonable basis to be protected against embarrassment of suffer a loss of dignity because of the activities taking place" - then I'm starting to like the idea of a Mens only bar.
 The Commission argued that these women had no reasonable basis to feel embarrassed because society, as a whole, does not find it objectionable to exercise with the opposite sex. In answering this, the Court said:
… Privacy interests are not determined by the lowest common denominator of modesty that society considers appropriate. What is
determinative is whether a reasonable person would find that person’s claimed privacy interest legitimate and sincere, even though not commonly held. Nothing in the record supports, nor does the Commission seriously challenge that these women do not sincerely hold these beliefs or that a reasonable person would not find these beliefs legitimate.
Even if a privacy right exists, whether that privacy right is worthy of protection is determined by balancing that interest against any harm caused to the excluded men. The only harm the Commission advances is that the men will not be allowed to exercise at certain Livingwell locations. However, the Commission admits that there are other facilities just as convenient where men can exercise in a coed environment. Unlike gender discrimination that would result in the non-hiring of males, or where an exercise establishment has other facilities where business or “networking” is conducted, no harm exists to any male by being excluded from Livingwell’s facilities. (p. 7)
 Although the object of Just Ladies is not only to address the disadvantage of women, it does provide a safe space for women to work-out free from the male gaze and the dominate presence of men in the facility. It is not because they are in a state of undress or using the washroom facility that causes the hardship, but the resulting inability to be free from the presence of men while engaged in activities where they may feel judged, harassed and embarrassed. In this respect, Just Ladies provides a service that addresses the disadvantage women experience in one facet of their lives. It also serves to protect their privacy issues within that context. In Keyes, the Board of Inquiry said that it was appropriate that women have a safe space in which to express their views and the service provided by Pandora served to remedy the disadvantage experienced by them. (paras. 112 and 113). In conclusion the Board of Inquiry said:
…I am satisfied that the denial of access by Pandora to men does not cause material or substantial harm to men, particularly in comparison to the benefit to women of having a women’s only publication dealing with women’s equality issues from women’s perspective and providing a safe place for a wide variety of women to express such views. I am satisfied and I find that men have adequate opportunity to express their views and opinions in the mainstream media without entry into this women’s place. (para. 120)
 Section 8(2) of the Code provides a defence to discrimination in the provision of a service customarily available to the public if the discrimination relates to the maintenance of public decency. The Code does not define the term “public decency”. However, the law is clear that the statutory defences set out in the Code are to be narrowly construed: Zurich Insurance Co. v. Ontario (Human Rights Comm.), , 2 S.C.R. 321 at para. 18; Sheridan v. Sanctuary Investments Ltd. (No. 3) (1999), 33 C.H.R.R. D/467 (B. C. Trib.) at para. 106.
 In the cases referred to by Just Ladies, the focus was on those individuals working within organizations who may view, or assist, others of a different gender in varying states of undress or while those individuals were engaged in private activities such as using the washroom. In these cases, it was appropriate to consider the defence of “public decency”. In my view, this case does not raise those types of issues especially since co-ed facilities exist side-by-side with women-only facilities without difficulty.
Just Ladies’ justification for its women-only policy was multi-faceted and not based solely on the issue of “public decency”.
 Although I was not persuaded that Just Ladies has established a defence of “public decency” under s. 8(2) of the Code, I dealt with those arguments, and jurisprudence referred to, above.HOT DAMN! WETCOASTER IS WRONG! Becareful of posting links to curious people, they might end up reading them Turns out this case wasn't won because of public decency
 In conclusion, Mr. Stopps’ complaint is dismissed pursuant to s. 37(1) of the Code.37
(1) If the member or panel designated to hear a complaint determines that the complaint is not justified, the member or panel must dismiss the complaint.So it was dimissed because the guy applying at a ladies only gymi) was doing so just to stir poopii) was not demeaned in any way by being turned awayiii) had other options that were closer to homeIt seems to me, if THIS case is used soley (obviously it wont, but hypothetically) to determine the out come of the barber shop... we should be siding with the BarberThanks Wetcoaster, that was actually a pretty interesting read.