Hobby Lobby Loses Transgender Bathroom Access Case in Illinois

(Bloomberg Law) -- Hobby Lobby Stores Inc. violated Illinois anti-bias law by denying a transgender woman employee access to the women’s bathroom, a state appellate court ruled in a case of first impression.

Meggan Sommerville’s sex is “unquestionably female” and Hobby Lobby unlawfully discriminated against her based on her gender identity, the Illinois Second District Appellate Court said in its Friday ruling.

“Sommerville is female, just like the women who are permitted to use the women’s bathroom,” the court said. “The only reason that Sommerville is barred from using the women’s bathroom is that she is a transgender woman, unlike the other women (at least, as far as Hobby Lobby knows.)”

The ruling marks a significant development in an element of LGBT employment rights that the U.S. Supreme Court didn’t address in its landmark 2020 decision in Bostock v. Clayton County, which said federal workplace law prohibits discrimination based on gender identity or sexual orientation.

“This decision will have national implications and start the process of courts around the country addressing the issue of bathroom access,” said attorney Jacob Meister, who represents Sommerville.

Hobby Lobby’s attorney, Whitman Brisky of Mauck & Baker LLC, didn’t immediately respond to telephone and email requests for comment.

The Second District, which ruled that Hobby Lobby violated Illinois law for barring bias in employment and public accommodations, upheld a $220,000 judgment for emotional distress and attorneys’ fees against the company.

Sommerville, who still works for Hobby Lobby, filed a complaint with the Illinois Human Rights Commission in 2013 after she was disciplined for using the women’s bathroom at the store. The commission ruled in 2019 that the company’s bathroom policy was unlawful.

In Friday’s decision, the Second District noted that Hobby Lobby’s bathroom ban drove Sommerville to limit her fluid intake, which caused her health problems. The restrictions also gave her recurring nightmares about bathrooms, and being assaulted and mocked by men, the court said.

The unanimous three-judge Second District panel rejected Hobby Lobby’s argument that a person’s sex is an immutable condition.

Nothing in the Illinois Human Rights Act suggests supports the company’s argument, Justice Mary Seminara-Schostok wrote for the panel, which also included Justices Kathryn Zenoff and Ann Jorgensen.

In addition, Hobby Lobby claimed during litigation that it would allow Sommerville to use the women’s bathroom if she produced a birth certificate saying she’s female or underwent genital surgery, the panel said.

“Hobby Lobby’s argument that female status is somehow immutable is belied not only by the Act,” Schostok wrote, “but also by its own conduct.”

The case is Hobby Lobby v. Sommerville, Ill. App. Ct., 2d Dist., No. 2-19-0362, 8/13/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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