CHICAGO — An Illinois state appeals court has determined Hobby Lobby violated state law when it denied an employee, a transgender woman, access to the women’s restroom at its East Aurora store.
Hobby Lobby hired Meggan Sommerville in 1998, years before her transition. In early 2010 Sommerville started using her current name at work without objection. On July 9, 2010, when she gave formal notice of her identity and intent to use the women’s restroom, the company updated her personnel records and benefits information but denied access to the women’s restroom and demanded she produce “legal authority” to support her request.
After store officials ordered employees to report Sommerville’s attempts to use the women’s restroom, which resulted in a February 2011 written warning, Sommerville filed complaints with the Human Rights Commission, asserting violations of the Illinois Human Rights Act’s provisions governing employment and public accommodations.
Illinois First District Appellate Justice Mary Schostok
| Illinoiscourts.gov
Ultimately an administrative law judge issued a recommended liability determination, holding Hobby Lobby's bathroom policy discriminated against Sommerville based on gender identity and suggesting $220,000 in damages for emotional distress as well as her legal fees. The Commission adopted those recommendations in April 2019.
Hobby Lobby asked the Illinois Second District Court of Appeals to review that decision and also sought to stay the damages and an injunction ordering Hobby Lobby to let Sommerville use the women’s restroom. The Commission agreed to stay the damages but refused to lift the injunction. In October 2019 the appeals panel formally suspended the injunction.
Justice Mary Schostok wrote the opinion, issued Aug. 13; Justices Kathryn Zenoff and Ann Jorgensen concurred. Among other consequences, the opinion lifts the panel’s stay on damages and the injunction.
“There is no real dispute that, in this case, Hobby Lobby is barring Sommerville from using the women’s bathroom because she is a transgender woman,” Schostok wrote. “Hobby Lobby’s conduct thus falls squarely within the definition of unlawful discrimination under the Act, as it treats Sommerville differently from all other women who work or shop at its store, solely on the basis that her gender identity is not ‘traditionally associated with’ her ‘designated sex at birth.’ ”
Hobby Lobby unsuccessfully argued the Commission conflated “sex” with “sexual orientation,” and that because Sommerville hasn’t had gender reassignment surgery, the store is allowed to dictate restroom usage. However, the panel noted, the law’s phrasing “is broad: it does not draw distinctions based on genitalia, the sex marker used on a birth certificate, or genetic information.”
The panel also drew attention to the law’s definition of “sex” as “the status of being male or female” and noted other things that may similarly change, such as marital or resident status. Although the panel agreed with Hobby Lobby that “sex” and “gender identity” aren’t synonymous under the law, “neither are these terms wholly unrelated,” Schostok wrote.
“Given the interrelationship between ‘sex’ and gender identity in Illinois law, the record establishes that Sommerville’s sex is unquestionably female,” Schostok continued. “She has undergone years of effort and expense to transition, and she appears to be and comports herself as a woman. Of even greater significance, her status of being female has been recognized not only by the governments of this state and the nation but also by Hobby Lobby itself, all of which have changed their records to acknowledge her female sex. Given this recognition, Hobby Lobby cannot plausibly assert that it is denying Sommerville access to the women’s bathroom on the ground that she is not female.”
The panel also said Hobby Lobby treated Sommerville differently from all other women in the store, customers or employees, and that while same-sex bathrooms aren’t discriminatory, Hobby Lobby’s restrictions on access do meet that standard. Even the provision of a unisex bathroom “cannot cure its unequal treatment of Sommerville with respect to the women’s bathroom,” Schostok wrote.
Hobby Lobby raised several other arguments, “but none have merit,” the panel said. Turning to damages, the panel said the award of $220,000 for emotional distress wasn’t excessive. It examined the record of Sommerville’s experience, which included anxiety, dehydration as a result of avoiding liquid intake to cut down on the need for bathroom visits and stress that “made her subject to bursts of crying, headaches, and nightmares regularly.”
Although the Commission had never awarded such a large amount for emotional distress, the panel said, Hobby Lobby failed to argue $220,000 was arbitrary or capricious, or that there was any abuse of discretion. Among the failures were a contention the administrative law judge refused to allow the testimony of a Hobby Lobby human resources officer, when it was Sommerville who placed that person on the witness list and Hobby Lobby who objected.
In addition to affirming the Commission’s decision, the panel granted Sommerville’s request to send the matter back to the Commission to detemine if any additional damages or legal fees should be ordered.
Sommerville has been represented by attorney Jacob Meister, of Jacob Meister & Associates, of Chicago.
Hobby Lobby has been represented by attorneys Whitman H. Brisky and Terry S. Lu, of Mauck & Baker, of Chicago.