Thursday, August 19, 2021

Illinois Appellate Court Rules on Transgender Bathroom Policy

Last year, we reported on the Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia, in which the Court decided that the Title VII of the Civil Rights Act of 1964 prohibited employers from discharging employees based on their sexual orientation or gender identity. When Bostock was announced, legal scholars and practitioners alike struggled to predict the implications of the Court’s decision, especially in jurisdictions where civil rights protections based on sexual orientation and gender were not formerly developed.

Illinois, however, adopted state-level protections against discrimination based on sexual orientation and gender identity in 2006. The Illinois Human Rights Act (“Act”) was amended at that time to prohibit discrimination on the basis of sexual orientation, which was defined as a person’s “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.” Nevertheless, novel legal issues continue to arise which require an interpretation of the Act, despite this explicit statutory language.

One such issue was decided last week by the Second District of the Illinois Appellate Court. In Hobby Lobby Stores, Inc. v. Sommerville and the Human Rights Commission, the court addressed whether an employer violated the Act by denying a transgender woman access to the women’s bathroom at work. In a unanimous opinion from the three-judge panel, the court held that Hobby Lobby discriminated against its employee, Meggan Sommerville (“Sommerville”) when it denied her access to the bathroom solely because she is transgender. By analyzing the statutory language, the court held that:

“Hobby Lobby’s conduct...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 is not ‘traditionally associated with’ her ‘designated sex at birth.’”

The Court’s approach was not unlike that taken by the majority of the Supreme Court in Bostock. By strictly interpreting the statutory language, the Court found that the definition of sex, “the status of being male or female,” demands the conclusion that sex is a mutable, or changeable, state of being under the Act. The definition does not reference genitalia, genetic information, or information on a person’s birth certificate but rather is quite broad and should be read to provide liberal protection consistent with the Act’s purpose.

Furthermore, the Court found Hobby Lobby’s actions unreasonable, given the length and expense of Sommerville’s transition and her efforts to become legally recognized as a woman (including changing her driver’s license, Social Security card, and legal name). These efforts extended to the workplace, too—Hobby Lobby had previously changed Sommerville’s personnel records to reflect her transition and acknowledge her as a woman.

The Court also upheld the Human Rights Commission’s award for injunctive relief and a $220,000 compensatory award for emotional damages, a notably high award. The Court noted that Sommerville experienced the discriminatory denial of bathroom access every day for over five years, which caused her significant distress, fear for her safety, and physical illness resulting from her withholding food and liquid to avoid using the bathroom.