Hobby Lobby violated state law by denying transgender woman access to women’s bathroom

By Brandi O. Brown, J.D. — In an appeal raising an issue of first impression in the state, the Appellate Court of Illinois affirmed a decision by the Illinois Human Rights Commission in favor of a transgender Hobby Lobby employee based on the employer’s refusal to allow her to use the women’s bathroom.

The Commission had found that the employer violated two articles of the Illinois Human Rights Act by discriminating against the employee based on her gender identity and the appellate court agreed with that determination, as well as the Commission’s decision to award her $220,000 in damages (Hobby Lobby Stores, Inc. v. Sommerville, August 13, 2021, Schostok, M.).

Transitioned to female. Nearly a decade after beginning employment with Hobby Lobby, the employee began to transition from male to female in 2007. She disclosed her female gender identity two years later and began medical treatment resulting in female secondary sex characteristics such as breasts.

In 2010, she began to use her female name and appear at work in feminine clothing and makeup. That year she also obtained a court order legally changing her name, as well as a new state driver’s license and Social Security card, both of which identified her as female. Around the same time, she formally informed Hobby Lobby of her transition and her intent to use the women’s bathroom. It changed her personnel records and benefits information to reflect her female identity.

Denied access to women’s bathroom. However, the employer stopped short at allowing her to use the women’s bathroom, demanding that she produce “legal authority” requiring it to allow her to do so. She provided her driver’s license, Social Security card, and name change court order, as well as a letter from her medical providers and a copy of the state’s human rights act. Nevertheless, the employer refused to allow her to use the women’s bathroom and ordered employees to report her if she tried.

Written warning. In February 2011, she received a written warning for entering the women’s bathroom at the store, which devastated her. The employer changed its precondition over time, asserting that the employee had to undergo surgery first and then stating she had to produce a birth certificate reflecting her sex as female.

In 2013, the employer installed a unisex bathroom at the store, but it still did not allow the employee to use the women’s bathroom. According to the employee, it felt like they were still “segregating” her. She felt as though “there were the guys, the gals, and then me.” The Commission found that the employee suffered and continues to suffer from emotional distress as a result.

Emotional and physical health issues. She had to find various ways of coping with her need to use the bathroom. At first, she would “hold it” until her lunch break. Then she was diagnosed with a medical condition that required her to use the restroom three or four times each day. She tried limiting her fluid intake and also using restrooms at nearby businesses, which required her to clock out. She also experienced recurrent nightmares and physical symptoms such as headaches, gastric problems, and dehydration.

Commission awards $220K. The ALJ issued a recommended liability determination in the Commission’s proceedings, recommending finding that Hobby Lobby’s bathroom policy discriminated against the employee based on gender identity. The ALJ awarded her $220,000 in damages for emotional distress and attorneys’ fees. The Commission adopted all of these recommendations and Hobby Lobby sought review in the appellate court, arguing that the Commission erred in finding that it had discriminated and abused its discretion in awarding damages.

Neither of Hobby Lobby’s contentions had merit, the appellate court concluded. “Unlawful discrimination” under the Illinois Human Rights Act, the court explained, is a defined term that includes “discrimination against a person because of his or her actual or perceived *** sex *** [or] sexual orientation *** as those terms are defined in this Section.” In turn, “sex” is defined as “the status of being male or female” and “sexual orientation” encompasses “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”

Because she is transgender. There was “no real dispute,” the court noted, that Hobby Lobby was keeping the employee from using the women’s restroom “because she is a transgender woman, that is, a woman whose ‘designated sex at birth’ was male, instead of a woman who was designated as a female at birth.”

Therefore, its conduct “falls squarely within the definition of unlawful discrimination under the Act,” the court stated, because it treated her differently from all other women at the store, “solely on the basis that her gender identity is not ‘traditionally associated with’ her ‘designated sex at birth.’” Therefore, the Commission did not err in finding the employer’s conduct violated the employee’s civil rights under sections 2 and 5 of the Act.

Definition of “sex.” For its part, Hobby Lobby argued that the Commission improperly conflated “sex” with “sexual orientation” and that it had limited access to its bathrooms based on sex, rather than gender identity. It argued that “sex” referred to “reproductive organs and structures” and that the employee, who has not been surgically treated, is of the male sex.

However, Hobby Lobby’s offered definition was not how “sex” was defined in the Act. The Act defined “sex” as “the status of being male or female,” which is a broad phrasing that does not draw distinctions based on genitalia, birth certificates, or genetic information. “At law,” the court explained, “a ‘status’ is a state of being that may be subject to change.” It offered examples, such as “marital status” and “resident status.”

Statuses change. While Hobby Lobby argued that being male or female is an immutable condition, the court found that “the plain language of the Act does not support this conception.” (Nor were any of the restrictions on “female” status advanced by Hobby Lobby immutable, since it noted that it would allow her to use the women’s restroom if she underwent genital surgery or provided a birth certificate with a female marker.)

There was no basis in the Act for treating the “status” of being female or male as “eternally fixed.” Furthermore, by defining sex as a status, without reference to anatomy, birth certificates, or genetics, the court explained, the Act allowed for consideration of gender identity as a factor that might be used to determine sex. The record established that the employee’s sex was “unquestionably female.”

Bathroom exemption inapplicable. Although the employer argued that there was a “bathroom exemption” under the Act, that exemption applied only to public accommodations and, in either context, it would not excuse discrimination based on gender identity. It would not apply to excuse Hobby Lobby’s conduct in this case because the employee is classified as female by the state of Illinois and by Hobby Lobby’s own personnel records.

Nevertheless, Hobby Lobby denied her the ability to use the women’s bathroom, thus treating her differently than both female employees and female customers. “This differential treatment cannot be considered to be ‘discrimination based on sex”: [the employee] is female, just like the women who are permitted to use the women’s bathroom.”

Barred because of gender identity. Rather, the court explained, the only reason she was barred was that “she is a transgender woman, unlike the other women (at least, as far as Hobby Lobby knows).” Therefore, the Commission correctly concluded that Hobby Lobby unlawfully discriminated against her based on her gender identity, “that is, because she is transgender.” The exemption also would not apply to her public accommodations claim because it does not excuse discrimination based on gender identity. Hobby Lobby’s remaining arguments were likewise rejected as meritless.

Damages upheld, may go up. Regarding the issue of damages, the court noted that the Act provides for the award of actual damages, which includes damages for emotional distress. The court explained that it would not disturb the amount of damages awarded absent an abuse of discretion and no such abuse occurred in this case. Furthermore, the court remanded, as requested by the employee, so that the Commission could determine whether any additional damages and attorneys’ fees might be due.