No Judgment in the Judgment Free Zone

Written By: Emma Sloan

Associate Editor, American Journal of Trial Advocacy

Rights and policy decisions surrounding the Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ”) community have been hotly contested in recent news. From influencing the presidential election, to influencing individuals joining a gym, there is clearly a need to define the boundaries, if any, for the policies that incorporate the LGBTQ group. Recently, Michigan joined the few courts that have taken up this issue.

Background

In January 2015, Plaintiff Yvette Cormier joined the popular fitness group, Planet Fitness.[1] A month into her membership Plaintiff Cormier walked into the ladies locker room and encountered a transgender individual.[2] Cormier confronted an employee explaining that there was a man in the ladies locker room.[3] The employees at Planet Fitness informed Plaintiff that a part of the company’s ‘No-Judgment Policy’ was allowing everyone open access to all of the gym facilities, which included allowing everyone to use the locker room associated with his or her self-reported gender identity.[4] Outraged, Cormier rapidly began spreading the word to fellow female gym members warning them that Planet Fitness allowed transgender individuals into the ladies locker room.[5] In an interview, Cormier conceded this allegation stating, “[e]very day I said ‘just so you know there’s a man they allow in this locker room and they don’t tell you that when you sign up.’”[6] Planet Fitness requested that Cormier stop dissuading customers and reiterated its judgment free policy.[7] Cormier ignored the requests, thereafter resulting in the termination of her membership.[8]

Procedural History

Cormier named PF Fitness-Midland, LLC and PLA-Fit Franchise, LLC as defendants in a law suit in a Michigan district court.[9] Cormier sued for intentional infliction of emotional distress, invasion of privacy, sexual harassment and retaliation in violation of the Elliot Larsen Civil Rights Act, as well as breach of contract and violation of the Michigan Consumer Protection Act.[10] Defendants moved for summary judgment against Cormier for failure to state a claim.[11] The lower court agreed, wherein this appeal ensued.[12] The appeal focused on whether the trial court erred in entering summary judgment in favor of defendants.[13] 

I. Violation of The Elliot Larsen Civil Rights Act (“CRA”)

“The CRA recognizes that freedom from discrimination because of sex is a civil right. Accordingly, the act prohibits discrimination because of sex in employment, places of public accommodation, and public office.”[14] To successfully claim a violation under the relevant statute, Plaintiff would have to show she “was discriminated against (i.e. sexually harassed) in this place of public accommodation because of her sex.”[15] In order for Cormier to prove sexual harassment, she must “first allege facts showing that she was subjected to ‘unwelcome sexual advances,’ ‘requests for sexual favors,’ or ‘conduct or communication of a sexual nature’.”[16] Cormier contended that she was exposed to conduct or communication of a sexual nature by way of having to undress in front of the transgender individual and the transgender individual undressing in front of her.[17] The court reasoned that the CRA does not define sexual harassment as being subject to the opportunity for a person to engage in conduct or communication of a sexual nature.[18] Rather, the court said the sexual harassment must have actually occurred, and furthermore, must have substantially interfered with the utilization of public accommodations.[19] The court held that Plaintiff’s allegation, that she encountered a man in the women’s gym locker room and therefore the Defendant’s policy could create a hostile environment for women, was not enough to claim violation of the CRA.[20]

II. Invasion of Privacy

Michigan recognizes the common law tort of invasion of privacy.[21] There are four ways to invade someone’s privacy; the Plaintiff contended that her privacy was invaded on the theory of intrusion into her seclusion or solitude.[22] Michigan case law equates intrusion to seclusion with trespass.[23] Similar to trespass and most other torts, there can be no intrusion of seclusion if the Plaintiff consented to the intrusion.[24] After balancing the secrecy of ones own naked body with the reduced expectation of privacy in a locker room, the court ultimately noted that Plaintiff consented to the intrusion when she continued to use the locker room after the encounter with the transgender individual.[25] Therefore, the court held that the consent defeated any intrusion of privacy claim.[26]

III. Breach of Contract

The alleged breach of contract was based on the termination of Plaintiff’s membership agreement.[27] As part of any Planet Fitness membership agreement, Planet Fitness reserves the right to terminate any membership immediately for violation of any membership policy or club rule.[28] On the day Cormier encountered the transgender individual she was informed of the judgment free policy which allowed free access to all the facilities without observing the gender noted on a member’s birth certificate.[29] A week later, when Cormier began dissuading and warning fellow gym members, she was informed that she should conform to the policy or have her membership terminated.[30] Finding the defendants had a right to terminate Plaintiff’s membership, the court agreed with the trial court that Plaintiff had failed to successfully claim breach of contract.[31]

IV. Intentional Infliction of Emotional Distress (“IIED”)

To successfully make a claim for IIED in Michigan, one must show that the defendant’s conduct “is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”[32] The Plaintiff claimed that Planet Fitness’s policy was extreme and outrageous because it allowed men to be in the same room as women while they are “changing, showering, or using the restroom.”[33] Plaintiff went on to assert that the policy was extreme and outrageous in allowing men to change and be naked in the presence of females in the locker room.[34] The appellate court agreed with the trial court in saying that this failed to constitute severe emotional distress.[35] The court reasoned that the policies and rights surrounding the LGBTQ community are so polarized that no two individuals will agree on which restroom a transgender individual should use.[36] Thereby eliminating a finding of what an average member of the community would find outrageous.[37] Moreover, the court found it significant that Plaintiff encountered the transgender individual while both were fully clothed, as such an incident did not rise to the requisite level of distress needed to establish an IIED claim.[38]

V. Michigan’s Consumer Protection Act (“MCPA”)

“The MCPA ‘prohibits the use of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade of commerce.’”[39] A violation of this Act is paralleled with the common-law tort of fraud, minus the intent requirement.[40] Plaintiff alleged that Planet Fitness violated the act by representing that the company had separate facilities for men and women while having an unwritten policy “allowing men who self-identify as women to use the women’s facilities.”[41] Because Plaintiff cited no authority to support her position, nor did she allege specific facts demonstrating violation, the court rejected her blanket, general argument.[42]

What’s Next?

Yvette Cormier is represented in her case by the Kallman Legal Group.[43] The Group has a reputation for taking on anti-LGBTQ cases.[44] According to her lawyer, David Kallman, they will be appealing the case to Michigan’s Supreme Court.[45] Cormier offered as a solution to the litigation single stall restrooms.[46] However, Planet Fitness would be wary to implement such a policy considering the backlash and monetary downfall popular retail store, Target, received just last year after announcing it would be implementing such restrooms.[47]

Michigan’s Supreme Court is majority conservative with a 5-2 lead.[48] Before Trump’s Supreme Court nomination, there was worry as to the possibility of Michigan Supreme Court Justice Joan Larsen’s appointment.[49] Although she has not had the chance to rule on the issue herself, she clerked for the late Justice Scalia.[50] However, Justice Larsen commented in a recent interview that she did not always agree with Scalia, giving those immediately affected hope for a less conservative ruling.[51] Additionally, there have come no pro-LGBTQ decisions out of the Michigan Supreme Court in the past.[52] Most recently in Mabry v. Mabry,[53] the Michigan Supreme Court denied to hear the legal ramifications of denying LGBTQ co-parents the protections of equitable parenthood, which the court conditioned on marriage.[54] However, a change in the appellate decision by the Michigan Supreme Court does not seem likely. The court of appeals appears to have been very cut-and-dry with its decision. The court seemed to strictly apply the facts to the law without considering any policy or future ramifications the decision would create. Was that the right thing to do, or should the appellate court have considered giving the LGBTQ community the decision they have been waiting for? Stay tuned to the Michigan Supreme Court’s decision for an answer.

Policy v. Right

There is no denying that politics and morals inevitably come into play when the topic of the LGBTQ community is brought up. To some, the acronym is just alphabet soup. To few, it is offensive. However, to those involved, it is a way of life. The argument that the Constitution fails to offer the LGBTQ community certain rights is ill-founded. The Bill of Rights incorporated within our Constitution applies to all persons. Whether you are lesbian, gay, bisexual, transgender, or “questioning,” you are still a person qualified with all rights given by reason of your affiliation with the United States. What appears to hinder the LGBTQ community are the various morally controlled policies incorporated by companies, schools, organizations, etc. These groups are allowed to institute policies that promote the purpose of their establishment. For example, “Planet Fitness has the right to allow members to use whichever locker room corresponds to their gender identity.”[55] When institutions have purposes that harp on religion or morality, this tends to suppress the LGBTQ group.[56] Lucky for the LGBTQ community, this policy did not.


[1] Cormier v. Planet Fitness, No. 331286 at *1(Mich. Ct. App. Jun. 1, 2017) http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20170601_C331286_60_331286.OPN.PDF.

[2] Id.

[3] Id.

[4] Id.

[5] Id. at *2.

[6] Emanuella Grinberg, Planet Fitness revokes woman’s membership after transgender complaint (Mar. 9, 2015, 5:50 PM) http://www.cnn.com/2015/03/07/living/feat-planet-fitness-transgender-member/index.html.

[7] Cormier, No. 331286 at *7.

[8] Id.

[9] Id. at * 1.

[10] Id. at *2.

[11] Id.

[12] Id.

[13] Cormier, No. 331286 at *2.

[14] Id. (quoting Hamed v. Wayne Co., 803 N.W.2d 237, 259 (Mich. 2011)).

[15] Cromier, 331286 at *3.

[16] Id. (citing Corley v. Detroit Bd. of Educ., 681 N.W.2d 342, 345 (Mich. 2004)).

[17] Cormier, No. 331286 at *3.

[18] Id.

[19] Id. at *3-4.

[20] Id. at *4.

[21] Id. at *5. (citing Lewis v. LeGrow, 670 N.W.2d 675, 682 (Mich. Ct. App. 2003)).

[22] Cormier, No. 331286 at *5.

[23] Id. (quoting Doe v. Mills, 536 N.W.2d 824, 828 (Mich. Ct. App. 1995)).

[24] Cormier, No. 331286 at *5 (quoting Lewis, 670 N.W.2d at 688)).

[25] Cormier, No. 331286 at *5-6.

[26] Id. at *6.

[27] Id. at *7.

[28] Id.

[29] Id.

[30] Id.

[31] Cormier, No. 331286 at*7.

[32] Id. (citations omitted).

[33] Id. at *8.

[34] Id.

[35] Id.

[36] Id.

[37] Cormier, No. 331286 at *8.

[38] Id.

[39] Id. (quoting Zine v. Chrysler Corp., 600 N.W.2d 384, 392 (Mich. Ct. App. 1999)).

[40] Cromier, No. 331286 at *9 (quoting Brownlow v. McCall Enter., Inc, 888 N.W.2d 295, 304 (Mich. Ct. App. 2016)).

[41]  Cormier, No. 331286 at *9.

[42] Id. at *10.

[43] Zack Ford, Planet Fitness isn’t violating privacy by welcoming transgender member, Michigan court rules, (Jun. 5, 2017), https://thinkprogress.org/planet-fitness-transgender-ruling-370ed37052b7.

[44] Id.

[45]Yvette Cormier v. @PlanetFitness(USA), (Jun. 16, 2017), https://genderidentitywatch.com/2017/06/16/yvette-cormier-v-planetfitness-usa/.

[46] Emanuella Grinberg, Planet Fitness revokes woman’s membership after transgender complaint, (Mar. 9, 2015, 5:50PM), http://www.cnn.com/2015/03/07/living/feat-planet-fitness-transgender-member/index.html.

[47] Target ends priority projects in transgender policy backlash, (Feb. 9, 2017, 2:48 PM) https://www.rt.com/business/376832-target-shuts-projects-transgender-boycott/

[48]JC Reindl, Republican Judges Keep Control of Michigan Supreme Court, Detroit Free Press (Nov. 9, 2016, 7:41PM), http://www.freep.com/story/news/local/michigan/2016/11/08/incumbent-justices-keep-seats-state-supreme-court/93489852/.

[49] Diana Sykes & Don Willett, Trump’s LGBT-Unfriendly Supreme Court Picks, (Dec. 7, 2016, 2:21PM), https://www.advocate.com/election/2016/5/18/trumps-lgbt-unfriendly-supreme-court-picks.

[50] Id.

[51] Id.

[52] Jay Kaplan, Michigan Supreme Court Lets Down LGBT Families, Again, (Aug. 11, 2016), http://www.pridesource.com/article.html?article=77661.

[53]882 N.W.2d 539 (Mich. 2016).

[54] Kaplan, supra note 53 (For more on the Mabry v. Mabry case see Ed White, Michigan Supreme Court denies lesbians parental rights, (Aug. 4, 2016), https://www.lgbtqnation.com/2016/08/michigan-supreme-court-denies-lesbians-parental-rights/).

[55] Emanuella Grinberg, Planet Fitness revokes woman’s membership after transgender complaint, (Mar. 9, 2015, 5:50PM), http://www.cnn.com/2015/03/07/living/feat-planet-fitness-transgender-member/index.html.

[56] No Promo Homo Laws, GLSEN, https://www.glsen.org/learn/policy/issues/nopromohomo; Niraj Chokshi, Boy Scouts, Reversing Century-Old Stance, Will Allow Transgender Boys, (Jan. 30, 2017), https://www.nytimes.com/2017/01/30/us/boy-scouts-reversing-century-old-stance-will-allow-transgender-boys.html; The Religious Right’s War on LGBT Americans, Americans United, https://www.au.org/resources/publications/the-religious-rights-war-on-lgbt-americans; Megan Cerullo, Catholic school educator sues after she’s fired for being gay, Daily News (Aug. 19, 2016, 4:55 PM), http://www.nydailynews.com/news/crime/catholic-school-educator-sues-fired-gay-article-1.2758385.

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