The Boston Phoenix
December 4 - 11, 1997


Free weights

Boston attorney James J. Foster wants to become the first man to join a women's-only health club in Massachusetts. Many women are upset -- and even angrier that the National Organization for Women has joined his cause.

by Jason Gay

He likes to run on a treadmill, and he enjoys sculpting his biceps and pectorals on those Nautilus-type variable-resistance machines. If his back is acting up, he says, he might skip the treadmill and plunk his tall, lean frame upon a StairMaster or an exercise bike. He's not a big fan of aerobics, step, or other group workout classes; likewise, you won't catch him holding forth in the Jacuzzi. When James J. Foster goes to a health club, he likes to exercise alone.

These days, however, Foster is exercising both alone and outside -- running around the city streets on frigid early mornings, doing pull-ups at a run-down playground alongside the Charles River. It's not a question of resources: the 52-year-old patent attorney could afford to enroll at any number of health clubs near his Back Bay home. But Foster's got his mind set on joining the one club that doesn't want him as a member: Healthworks, the city's largest women-only fitness center.

Nearly one year ago, Foster sued Healthworks, charging that its women-only policy was discriminatory and violated state law for places of public accommodation. This fall, a state Superior Court judge agreed with him and instructed Healthworks to admit Foster -- as well as any other men seeking to join. A still-pending hearing to discuss damages (scheduled for December 17) has postponed a court order to ensure Foster's entry, but he's confident that he'll soon be seen running in place at Healthworks' sleek, 34,000-square-foot gym near Copley Place.

"I want to get in there," Foster says. "It's getting cold."

But Healthworks isn't about to roll out a red-carpeted treadmill for him. Many of the 13,000 women enrolled at Healthworks' four Boston-area facilities think that admitting Foster -- or any other man -- is a threat to the comfort and privacy of women, and undermines the founding purpose of single-sex fitness clubs. Undaunted by their loss in court, Healthworks and its members are now pushing to amend the state's public accommodations statute to exempt health clubs -- a measure that, if passed, supporters hope would nullify the judge's ruling and keep Foster out.

"I don't think he [Foster] has taken into consideration all the people he could affect," says Healthworks member Linda Gordon. "I don't think he cares to understand all the various personal situations that could be disrupted."

At Healthworks, there's little question that Foster is a cross traina non grata. But the fitness center has found itself facing an unexpected opponent: the National Organization for Women (NOW). The respected 30-year-old agency -- which helped topple men's-only institutions ranging from the Citadel to the smoky back rooms of Locke-Ober -- is fighting Healthworks' campaign on Beacon Hill, charging that any amendment to the existing public accommodations law would be a step backward for women's equality.

"This is about give and take," says Massachusetts NOW president Cheryl Garrity. "If you want equal rights, then you want them for everybody -- not just when it benefits you."

NOW's involvement in the Healthworks case unmistakably changes the tenor of the dispute. What began as a low-profile disagreement pitting a lone-wolf attorney against a downtown health club has evolved into an important, far-ranging battle over gender issues and the law. At its heart is a difficult central question: What, precisely, does equality between the sexes mean?

Both sides agree that the resolution of this debate -- which is expected to intensify next month at the State House -- is likely to have an impact that extends far beyond Massachusetts. John McCarthy, the executive director of the Boston-based International Health, Racquet and Sportsclub Association (IHRSA), says that though 7 states have statutes protecting single-sex health clubs, 42 others have laws similar to Massachusetts's.

"This case puts women-only clubs in those [42] states in jeopardy," McCarthy says.

On a recent afternoon, Healthworks president Mark Harrington reaches into a file cabinet in the club's fourth-floor headquarters and removes a folder as thick as a telephone book. Inside are letters -- to legislators, to lawyers, to NOW leaders -- and testimonials from members describing the importance of the fitness center in their lives. There are letters from older women, younger women, professionals, and retirees. More than a few of the writers are victims of sexual abuse, assault, or rape. All of the letters express indignation at Foster's attempt to open the club to men; some of them vow that if Foster is allowed to join, they will never return.

"To our members, this is a total violation," Harrington says.

Indeed, for women who belong to single-sex fitness clubs, James Foster's challenge is not some ironic civics case. It's about protecting women's safety and privacy; it's about respecting people who, for reasons both physical and psychological, do not want to exercise in the presence of men.

"It's a body issue, and it's unique," says member Valerie Sutter. "There's a reason to make a [legal] exception for it."

Sutter is not alone. More than 80 percent of women who responded to a Healthworks survey said the single-sex policy was the primary reason they joined. Some of those women may have been victims of male violence. Others may have been leered at by men in coed clubs. But most are simply more comfortable in a single-sex club, where they say they feel less pressured, less competitive, and less body-conscious than they would in a coed fitness center.

"When you're working out, you want to be uninhibited," says Linda Gordon. "You don't want to be distracted."

Harrington says he didn't completely appreciate the relationship between his club and its membership policy until l'affaire Foster. Twenty-one years ago, when he and his wife, Patricia, founded the first Healthworks in Salem, it was simply a smart business move to give women a fitness center of their own, apart from the macho muscle factories that dominated the coed gym marketplace.

The Harringtons kept their club low-key and friendly to all body types, focusing on women's health issues and avoiding quick-buck gimmicks. By resisting the urge to expand heavily during the franchise-happy 1980s, Healthworks outlasted other, bigger female-only centers, such as Gloria Stevens; with facilities in Salem, Cambridge, Brookline, and the Back Bay, the Harringtons now have the largest women's club network in the state.

Healthworks' growth mirrored the explosion in the women-only fitness market nationwide. Though such clubs have existed for decades, the industry has blossomed over the past 10 years; today, it is a half-billion-dollar business with more than 2000 gyms and two million members nationwide. (Besides Healthworks, Massachusetts is home to 26 other women-only fitness clubs.) Most clubs carve out a niche by offering women standard weight training and aerobic activities, as well as specialized programs for everything from pregnancy to menopause. "The camaraderie and support at a women's club is tremendous," Sutter says.

Aesthetics help, too. Healthworks' Back Bay location looks like a combination of a fitness center, a spacious loft apartment, and a trendy restaurant. There are enough aerobic-workout and weightlifting machines to train a small navy. Dozens of classes are offered, from workouts for expectant mothers to dance/rhythm courses including Latin salsa, funk, and African tribal dance. Top 40 music filters in through a stereo system, but there's none of the nightclub-like atmosphere that can permeate coed gyms.

"We're considered a trendsetter in the women's fitness industry," Harrington says.

But when James Foster crossed the street from his Dartmouth Street apartment to the Back Bay Healthworks in February 1996 and was denied entry, he set in motion a chain of events that threatens the fitness industry's philosophical and financial foundation. Harrington estimates that he himself has spent more than $200,000 on lawyers, public relations specialists, and lobbyists to defend the club's position. Healthworks has also put all expansion and improvement projects on hold until the issue is resolved, he says.

Still, Harrington vents little anger at the man who started the dispute.

"I have a great deal of respect for Foster," Harrington says. "He's not in it for the money -- he's a crusader. He's articulate and well-educated, and he's been consistent. He's got one problem. He's misguided."

But Harrington and Healthworks members reserve their strongest criticism for the newest opponent on the scene: NOW. And no wonder. Though the organization came to the dispute late -- its executive board began considering the Healthworks case only this fall -- and though it has given Foster no financial assistance, NOW's involvement makes Healthworks' fight more difficult. As the organization responsible for many of women's most important advances in this century, NOW wields considerable political clout on Beacon Hill and Capitol Hill alike.

"It just knocks my socks off," says Healthworks member Melody Bohl. "I'm appalled at NOW to the point where I'll think twice about supporting them."

Though Cheryl Garrity doesn't come out and say it, you get the feeling that she wishes James Foster had never walked through Healthworks' door. The state's NOW president -- an attorney with an office near Downtown Crossing -- has other battles on her agenda: affordable childcare for welfare mothers, domestic-partnership benefits for state employees, and an extended statute of limitations on sexual harassment claims, to name a few. Fighting for Foster's right to treadmill isn't like breaking down the iron gates of the Citadel.

But Garrity says that NOW leaders couldn't stand still as Healthworks tried to change the state's antidiscrimination law. Though the organization sympathizes with women-only health club members who say these fitness centers have improved their lives, NOW believes that the state's current public accommodations law -- a statute designed, ironically, to eliminate single-sex environments such as men's-only restaurants -- should not be tailored for their benefit.

"What Healthworks is pushing for is really the legalization of discrimination based on sex," Garrity says. "We should not begin making [legal] exemptions based upon gender."

This is precisely how a Superior Court judge recently interpreted the law. The October 3 decision by Justice Nonnie S. Burnes found that Foster cannot be banned from Healthworks or any other single-sex fitness center, even if members are uncomfortable. Burnes also found no merit in Healthworks' claims that men would violate female club members' privacy rights.

"Healthworks' affidavits and personal statements describe the sense of intimidation certain women, including postmenopausal women, and women who have undergone mastectomies or who have suffered abuse, will feel in a coed exercise atmosphere, such that they would cease their exercise program," Burnes wrote in her decision to award summary judgment to Foster. "While the Court recognizes the impact that the admission of men into the club may have on these women, intimidation and the assumption that all male Healthworks members will harass and leer at their exercise compatriots is still an insufficient ground on which to create a privacy exception."

But once the courts said no, Healthworks decided to bring its case to Beacon Hill. This fall, it lobbied to create legislation that would exempt any place "of exercise for the exclusive use of persons of the same sex which is a bona fide fitness facility" from the state's antidiscrimination statute. If passed, the bill would also be retroactive three years -- a provision intended to block Foster.

Garrity and NOW, however, view this amendment as a harmful, shortsighted end run around an important law. "How will `bona fide fitness and wellness facilities' be interpreted by the courts?" she asked at an October 30 State House hearing on the bill. "Will a golf club that provides stress management courses together with massages qualify? What about doctors' offices, meditation centers, yoga classes, or chiropractors? Once we exempt fitness and wellness facilities, who else will seek legislative approval to discriminate? Bigots who are `more comfortable' eating at a whites-only restaurant because the presence of people of color causes them anxiety and indigestion might need an exemption for their `long-term health and well-being.' "

Some find this slippery-slope argument against the House bill a little far-fetched. Garrity is right when she says that a gender-discrimination exemption might spell trouble in rural areas, if an area's sole health club goes single-sex. But it's hard to imagine that the Healthworks amendment would bring a return to whites-only dining establishments.

"To me, it's a pragmatic question rather than a legal one," says IHRSA's McCarthy. "Is this discrimination on the basis of sex? Yes. No question. But is it the type of discrimination that bothers a lot of men? I don't think so."

But it's also true that, historically, women are no strangers to the very discrimination of which Foster is claiming to be a victim. Female bodybuilder Debra DiCenso was arrested in 1995 for trespassing at the L Street Bathhouse, in South Boston, after she began working out in the men's weight room. DiCenso and a friend, Fatima Hassan, still have a complaint pending before the Massachusetts Commission Against Discrimination. Though it's a slightly different scenario -- L Street, after all, is held to an even higher antidiscriminatory standard as a city-owned building -- DiCenso and Hassan's lawyer, Martha Bagley, sees similarities in the complaints of L Street and Healthworks members, and she supports NOW's stance.

"Carving any exception to a civil rights bill is dangerous," Bagley says.

Not surprisingly, NOW's position is also backed by the American Civil Liberties Union. "I think NOW is getting unfairly criticized," says Sarah Wunch, the staff attorney for the Massachusetts ACLU chapter. "We share their view that people who really care about women's rights and women's equality will not be well served by allowing health clubs to discriminate because of gender. To allow an exception to the law because people feel uncomfortable -- well, that's an excuse that was once given out by men's clubs."

Still, Garrity knows that NOW's opposition to the single-sex health club bill won't win the organization any favor with the public. Few people, male or female, see anything wrong with letting women have their own fitness centers. Already, Garrity says, she's gotten her fair share of angry letters and phone calls.

"It's very disheartening that they [Healthworks] have personalized it at this level and have this vendetta against the organization," she says. "But this isn't a popularity contest."

And few people are more pleased by the escalation of the Healthworks case than James Foster. Though he says he never expected it to take so long, it's clear that winning this case means more to him than just working out at the gym across the street. After fighting a one-man battle for more than a year, he's happy to see an organization like NOW come to his aid.

"It's ironic," he says. "Isn't it?"

Though he's polite and self-effacing in conversation, there's also a cockiness to Foster, as if he's saying, I know the law, and I know I'm going to win. He seems to enjoy playing the part of provocateur.

"I really think he is enjoying this," says Healthworks member Valerie Sutter.

Sutter and other Healthworks members have questioned Foster's motivations from the start. Much has been made of his experience fighting sex-preferential pricing during the 1980s; before he moved to Boston, when he worked on an informal, unpaid basis for the New York City Human Rights Division, Foster occasionally filed written complaints about events like "ladies night" drink discounts at Manhattan bars. Less has been made of Foster's work in the mid-1970s through the early '80s to help secure disability payments for pregnant New York public educators, a case he took up on his then-wife's behalf.

"People wrongly think that I'm some male chauvinist," insists Foster, who is now divorced.

But whatever the charge, Foster isn't fazed by criticism. If the court allows him to enter Healthworks later this month, he will go. Asked if he would be nervous about walking in that first day, Foster puts his long arms behind his gray-haired head and chuckles.

"Are you kidding?" he says. "No, I'm going to buy a big box of chocolates and some flowers, and just show up. It should be fun."

But even if Foster is allowed to join Healthworks, the fight won't stop. When the state legislature reconvenes next month, the Senate will again consider the Healthworks amendment to the public accommodation law; the House has already passed the bill. Thanks to Healthworks' aggressive lobbying -- one legislator reported receiving more calls on the single-sex health club bill than on the death penalty -- the amendment was on the verge of Senate passage in November. It was derailed only after Senator Linda Melconian (D-Springfield) raised an objection, delaying a vote until January.

Of course, Healthworks and other women's fitness clubs have a substantial economic interest in keeping their single-sex status. If these clubs are forced to go coed, they would lose their unique chunk of the fitness market -- not to mention the fact that they would be hit with the sudden costs of adding men's bathrooms and locker facilities.

"I didn't appreciate how much money is involved," Foster says.

Still, it's not money that has rallied thousands of female health club members in support of this bill. They believe that Foster and NOW are on the verge of ruining a good, healthy environment for women. Though NOW contends that Healthworks and other single-sex clubs can maintain their niche by designing and marketing the club strictly to women's needs, members feel that letting just one man through the door irreparably changes its atmosphere.

"It will become just like any other coed health club," says member Linda Gordon.

But NOW -- and other critics of the single-sex health club amendment -- aren't backing down from their controversial position. They are asking their detractors to take a longer view. They agree that single-sex health clubs are an attractive option for many women. But no matter how well-intentioned they are, women cannot ask for equality and the right to discriminate in the same breath, says Cheryl Garrity.

"If this were a men-only health club," she says. "I have no doubt that NOW and many Healthworks members would be down there protesting -- together."

Jason Gay can be reached at jgay[a] Research assistance provided by Kate Cunningham.

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