Legal attacks on sex-segregated restrooms are gaining important court victories
A nearly decadelong legal dispute between Hobby Lobby and a transgender employee over women’s restroom access came to a close recently with an Illinois appeals court ordering the evangelical family-owned company to pay $220,000 in fees for causing “emotional distress.”
The panel of three conservative judges said Hobby Lobby violated the state’s Human Rights Act by forbidding longtime employee Meggan Sommerville, 52, a biological male previously known as Mark Thomas, from using the women’s facilities. The judges rejected Hobby Lobby’s argument that a person’s sex is immutable and determined by anatomy and reproductive organs. The state’s Human Rights statute, enacted in 2005, defines sex as “the status of being male or female.” The judges deemed that definition as broad and subject to change and called Sommerville “unquestionably female.”
The ruling signaled another concession in the bathroom wars and what could become a new norm for businesses in more than 20 states with nondiscrimination statutes for employment and public accommodations based on sexual orientation and gender identity.
“Once you include gender identity, gender expression, and sexual orientation in anti-discrimination laws, it means there is no longer a legal way to protect sex-segregated spaces for anyone, anywhere,” said Laurie Higgins, cultural issues writer at the Illinois Family Institute.
Sommerville, a Hobby Lobby employee since 1998, began identifying as a female in 2007. Three years later, Sommerville notified Hobby Lobby after obtaining an updated driver’s license, Social Security card, and a court-ordered name change. Hobby Lobby updated Sommerville’s employee records but barred Sommerville from using the women’s facilities. The store installed a unisex restroom and reportedly changed its criteria, at one point stating Sommerville could use the women’s restroom after undergoing genital surgery, according to the lawsuit.
Sommerville alleged Hobby Lobby’s restroom policy caused years of distress, anxiety, and other physical and emotional symptoms.
The court’s $220,000 figure comes from the state’s Human Rights Commission, which in 2015 determined Hobby Lobby should pay Sommerville that much in damages. It was the highest amount awarded by the commission for emotional distress. Now, the case is going back to the commission to decide whether more damages and fees have accrued since then.
The law firm representing Hobby Lobby, Mauck & Baker, declined to comment on the case. It is unclear whether the retailer plans to appeal to the Illinois Supreme Court.
Brad Jacob, associate dean and principal lecturer at Regent University School of Law, said Hobby Lobby’s case likely will not succeed with the state Supreme Court since the justices could similarly interpret state law. Hobby Lobby attorneys relied solely on an interpretation of the anti-discrimination statute and did not raise religious liberty concerns, a move Jacob questioned.
While Hobby Lobby’s ruling only applies in Illinois, Jacob noted it could still persuade courts in other states with nondiscrimination statutes covering sexual orientation and gender identity: “The unsurprising result is that these statutes are being taken seriously and read with a lot of teeth and a lot of strength.”
In February, the U.S. House of Representatives passed the Equality Act, a federal bill that would expand discrimination protections to LGBT individuals in numerous areas, including restrooms. It is now stalled in the Senate after a committee hearing in March at which feminist groups expressed the disastrous impact the bill would have on women’s rights.
Local school districts have been a prominent arena for legal disputes over sex-segregated restrooms. On Thursday, a Virginia school board agreed to pay the American Civil Liberties Union $1.3 million in legal costs in the case of a former student who sued the board over its sex-segregated restroom policy. The lawsuit involving Gloucester County School Board and Gavin Grimm, a former student and biological female who identifies as a male, concluded after reaching the U.S. Supreme Court in June. Justices denied the board’s appeal to uphold its restroom policy.
The Supreme Court’s 2020 Bostock v. Clayton County decision is already causing far-reaching consequences in court cases involving discrimination based on sexual orientation and gender identity. The dispute over sex-segregated restrooms is far from settled amid ongoing lawsuits in states such as Tennessee and Florida and as LGBT advocates push for local anti-discrimination policies to include sexual orientation and gender identity.
Douglas Laycock, a professor at the University of Virginia School of Law, said to expect more lawsuits and more decisions such as the Illinois appellate court’s. He predicted one-unit unisex restrooms are the future, “but the transition will be long and slow. … Neither side is much interested in any sort of compromise.”
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