Diversity & Inclusion, HR Management & Compliance

Employer’s Transgender Bathroom Ban Violates Illinois Human Rights Act

A transgender person’s access to the bathroom associated with their new identity has become a hot-button issue in society at large. It was therefore no surprise that an Illinois court was asked to weigh in on the issue. In a landmark ruling, the Illinois Appellate Court for the Second District ruled an employer violated the Illinois Human Rights Act (IHRA) by denying a transgender woman the use of the women’s bathroom at work.

Framing the Issue

Meggan Sommerville was designated as a male at birth and given a boy’s name. He was hired by Hobby Lobby in July 1998. A few years later, Sommerville was transferred to the company’s store in East Aurora, Illinois.

In 2007, Sommerville began transitioning from male to female. She disclosed her female gender to some Hobby Lobby staff in 2009 and also began medical treatment that resulted in female secondary sex characteristics such as breasts and the absence of facial hair.

In early 2010, Sommerville began to use her female name and appear at work in feminine dress and makeup. No one at Hobby Lobby objected. In July 2010, she obtained a court order legally changing her name and a new Illinois driver’s license and Social Security card, both of which showed her new name and identified her as female.

Scrapbook Materials

On July 9, Sommerville formally informed Hobby Lobby of her transition and intent to use the women’s bathroom at the store. In response, the company changed her personnel records and benefits information to reflect her female identity. The company refused, however, to let her use the women’s bathroom. Instead, it asked her to provide “legal authority” that required the company to allow her to use the women’s facilities.

In response to the request, Sommerville provided Hobby Lobby with her driver’s license, Social Security card, the name-change court order, a letter from doctors identifying her as a female transgender individual and requesting that she be allowed to use the women’s bathroom, and a copy of the IHRA and similar statutes from Iowa and Colorado. Yet the company still refused to let her use the women’s bathroom.

Crafting a Response

Occasionally Sommerville used the women’s bathroom despite Hobby Lobby’s policy. On February 23, 2011, the company issued her a written warning for entering the women’s bathroom. Sommerville claimed she was “emotionally devastated” by the discipline, and even her supervisor acknowledged she was very upset and broke down crying.

When Sommerville didn’t defy the ban, she tried various ways of coping with her need to use the bathroom. For some time, she was able to “hold it” until her lunch break. Later she was diagnosed with a medical condition that led her to need to use the bathroom three or four times each day. In response, she limited her fluid intake.

At times Sommerville left the Hobby Lobby store to use the bathroom at nearby businesses, but that required her to punch out from her work shift and walk some distance in both foul and fair weather. She claimed the bathroom ban gave her recurrent nightmares and physical symptoms such as headaches, fatigue, and other problems.

(Adverse) Party Favors

In February 2013, Sommerville filed a discrimination complaint with the Illinois Human Rights Commission (IHRC), alleging discrimination based on gender. During the litigation, Hobby Lobby’s position changed:

  • At one point, the company required Sommerville to undergo surgery to meet its conditions for using the women’s bathroom (she hasn’t had a surgical procedure to change genitalia).
  • Later it required her to produce a birth certificate reflecting her sex as female.

In December 2013, Hobby Lobby installed a unisex bathroom at the store but still didn’t allow Sommerville to use the women’s bathroom.

The IHRC found Hobby Lobby violated the Act’s prohibition on sex discrimination and awarded Sommerville $220,000 in damages for emotional distress and attorneys’ fees. The commission also ordered the company to allow her to use the women’s bathroom. Hobby Lobby appealed.

Spinning a Yarn

In the Illinois Appellate Court, Hobby Lobby argued the IHRC misinterpreted the statute. The company claimed it limited access to bathrooms based on sex, not gender identity, and the IHRA permitted it to do so. Specifically, the company argued “sex” means “reproductive organs and structures,” and Sommerville is therefore of the male sex.

From a broad perspective, the court noted the IHRA was amended 15 years ago to cover discrimination based on sexual orientation (which is defined to encompass various aspects of sexuality, including gender identity). Since then, Illinois state law has explicitly recognized gender identity to be a primary determinant of a person’s “sex” for legal purposes.

For example, a transgender person can receive a birth certificate with a corrected sex marker upon presenting a declaration from a healthcare professional that the individual has undergone gender transition treatment. Likewise, a transgender person may apply to change the sex designation on a driver’s license and mandate the gender identity to be used in funeral and burial instructions. According to the appellate court, the provisions show a person’s gender identity is an accepted basis for determining the individual’s “sex.”

More directly, the court rejected Hobby Lobby’s position based on the text of the statute. The IHRA defines “sex” as “the status of being male or female.” As the court observed, the definition “does not draw distinctions based upon genitalia, the sex marker used on a birth certificate, or genetic information.” The definition’s use of the word “status” invokes a state of being that may be subject to change, said the court.

The IHRA’s ban on discrimination based on “marital status” shows a person’s status “may change depending on an individual’s actions or other external events.” Therefore, Hobby Lobby’s argument that “sex” (the status of being male or female) is immutable isn’t correct. By denying Sommerville the ability to use the women’s bathroom, the employer treated her differently based on her gender identity, in violation of the Act. Hobby Lobby Stores, Inc. v. Sommerville, 2021 IL App (2d) 190362 (Aug. 13, 2021).

Sewing It Up

The decision is an important (but not necessarily surprising) development in defining the IHRA’s contours. When the law was amended years ago to prohibit discrimination based on sexual orientation and gender identity, the result in Sommerville’s case was preordained.

As the court held, “by defining ‘sex’ broadly as a status, without any reference to anatomy, birth certificates, or genetics, the IHRA allows for the consideration of gender identity as one of the factors that may be used to determine sex.” Illinois employers with transgender employees must adjust their policies (including rules on bathroom access) as necessary to adjust to the law in light of the decision.

Steven L. Brenneman is a partner with Fox, Swibel, Levin & Carroll, LLP, in Chicago. You can reach him at sbrenneman@foxswibel.com.

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