Love v. Young
| Decision Date | 21 April 2021 |
| Docket Number | No. 1D18-2844,1D18-2844 |
| Citation | 320 So.3d 259 |
| Parties | Nevaeh LOVE, Appellant, v. Katoshia YOUNG, Appellee. |
| Court | Florida District Court of Appeals |
Benjamin James Stevenson, ACLU Foundation of Florida, Pensacola; Daniel B. Tilley and Nancy Abudu, ACLU Foundation of Florida, Miami, for Appellant.
Kenneth L. Brooks, Jr. of Brooks, Warrick & Associates, Milton, for Appellee.
Appellant challenges a final judgment finding Appellee not liable for gender-identity discrimination under the Florida Civil Rights Act of 1992. The FCRA provides in pertinent part as follows:
All persons are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, national origin, sex, pregnancy, handicap, familial status, or religion.
§ 760.08, Fla. Stat. (2017).
The trial court did not decide whether the FCRA extends to gender identity,1 but rather applied an "even-if" analysis and decided the case on Appellee's defenses. The record fully supports the trial court's judgment.
After conducting an evidentiary hearing and evaluating witness credibility, the trial court found competent, substantial evidence supporting the following version of the facts, which we are not authorized to reweigh. See Stinson v. Winn , 938 So. 2d 554, 555 (Fla. 1st DCA 2006) ().
Appellant testified to having been assigned male gender at birth, but identifying and presenting as female, thus considered a transgender woman. Appellant joined a group of friends at a show involving male performers called the Black Chippendales. It appears that in a typical performance, the dancers would disrobe to a degree, and then might engage in mutual sexual or sexually-suggestive touching with patrons seated within reach. Appellant admitted to having seen advertisements limiting the show to "ladies only." Appellant's friends arrived first, bought a ticket for Appellant, and sat at table 19 within the ticketed VIP second-row section on the side of the performance area. The tickets did not designate any specific table or seat. The seat map in evidence illustrates the layout and the location of Appellant's table.
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Someone recognized Appellant and notified Appellee that there was a "male dressed as a female" in the audience—not that Appellant was transgender. When the performers learned that "a man dressed as a woman" was in the audience, they vehemently refused to perform under the risk of having Appellant touch them during the performance—cursing and threatening physical violence if that should happen. One adamantly said he didn't want to dance for guys or "get in on that action." A performer who testified at trial explained as follows:
We are just not used to dancing for guys. That is just something we don't do. We don't dance in those kinds of clubs and things. That is something we always stand by.
The performer who testified at trial stated that the performers had told Appellee before agreeing to the performance that they would not perform for men.
An organizer of the event, fearful that the patrons would "riot" if the performance were cancelled, offered the performers a compromise solution, which they accepted. Appellant would be asked to move two tables over to table 17, within the same VIP second-row section. Table 17 was closer to table 1 at the front center of the performance area, where the performers could better see and avoid Appellant, if desired. When told of the performers’ concerns and asked to move two tables over in the same section and ticket class, Appellant became upset, asked for and received a full refund of the ticket price, and left. Appellant admitted at trial that the dancers would still have been within touching distance from table 17.
Appellant filed suit under the FCRA, alleging a version of the facts that the trial court rejected.2 Appellant claimed to have been asked to move all the way to the back of the room or to leave altogether. Appellant's complaint then alleged only that the privilege or advantage denied to Appellant was that of sitting in the VIP section for the performance: "Young denied Love the privilege or advantage of sitting in the VIP section." It was not until after the ensuing bench trial that Appellant first argued, without seeking to amend the complaint, and while still maintaining that Appellee demanded Appellant move to the back or be ejected, that the mere act of being asked to move within the same seat class constituted a violation of the FCRA.3
As already noted, the trial court resolved the factual disputes in Appellee's favor. The court then examined the motivation or defense for the allegedly discriminatory act; i.e., the performers’ right to be protected from unwanted sexual touching. Cf. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (). The trial court concluded as follows:
The trial court went on to observe that on the facts presented, in the context of sexual touching or contact, granting relief to Appellant would require the court to impose Appellant's gender norms on unwilling others, which the court declined to do.
Appellant (and the dissent) rely on policy arguments that the trial court did not reach, that the Florida Legislature has not adopted, and that are unnecessary to disposition.4 We can and should instead decide this case on grounds clearly supported by existing law, thus adhering to principles of judicial restraint and avoiding novel public policy decisions. See PDK Labs., Inc. v. United States Drug Enf't Admin. , 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring) ().
The trial court concluded that even if the FCRA did apply here, the ultimate question would be limited to whether the FCRA requires individuals engaged in intimate or sexual performances to allow anyone and everyone to touch them in such a way against their will. The trial court correctly held that the performers’ legal rights of personal privacy would prevail over Appellant's apparent claim of an unfettered legal right to subject the performers to unwanted touching, particularly touching of an intimate or sexual nature.
Although Appellant argues that we should reject the trial court's reasoning because there is not, and cannot be, any "unwanted touching" exception in the FCRA, we cannot adopt that reasoning without implicitly invalidating, or creating new exceptions to, numerous existing laws that protect fundamental rights. Multiple Florida laws prohibit unwanted touching, including laws on simple battery;5 sexual battery;6 sexual harassment;7 and, ironically, hostile work environment created by unwanted touching.8 None of these laws creates any public-accommodation exception to the basic rights of privacy and freedom from unwanted physical contact. It would be anomalous indeed to hold that the FCRA must be interpreted to allow unwanted touching that would be remediable under criminal or civil law. We need not and should not go further to affirm the trial court's judgment.
AFFIRMED .
I would also affirm the judgment, but for different reasons. See Robertson v. State , 829 So. 2d 901, 906 (Fla. 2002) . I would affirm because Grotto Hall was not a place of public accommodation under the Florida Civil Rights Act.
The FCRA prohibits discrimination in any "place of public accommodation"... "on the ground of race, color, national origin, sex, pregnancy, handicap, familial status, or religion." § 760.08, Fla. Stat. (2016). Public accommodations include:
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