➤ HOBBY LOBBY, from p.6
caused trouble back at the workplace,
and the situation worsened
when she developed a medical
condition requiring her to use the
restroom three or four times during
a shift.
She also found the unisex bathroom
humiliating. On the one
hand, construction of such a facility
was a de facto recognition of
her gender by Hobby Lobby, but
on the other hand, she saw it as
segregation and treating her differently
from the other women
who worked there or patronized
the store as customers. As she
testifi ed to the Commission, she
“felt like in some ways they were
recognizing me as female, but yet
they were segregating me. I felt as
though there were the guys, the
gals, and then me.”
In addition, wrote Justice
Schostok, “Hobby Lobby’s bathroom
ban gave Sommerville recurrent
nightmares about bathrooms,
being approached by men,
and being physically assaulted
and laughed at by them. She also
developed physical symptoms
including headaches, fatigue,
muscle cramps, gastric problems,
and dehydration due to restricting
her fl uid intake.” All of these
refl ect the evidence in numerous
other lawsuits where transgender
students sued to be able to use
appropriate restrooms in their
public schools.
Sommerville fi nally fi led a complaint
with the Illinois Human
Rights Commission, which ruled
in her favor on April 10, 2019, but
the ruling on damages was stayed
by the Commission pending appeal,
although it refused to stay
the order to allow Sommerville to
use the women’s restroom. However,
Hobby Lobby quickly appealed
to the Appellate Court, which also
stayed the restroom order. That
stay was not lifted until August 13,
when the court issued its ruling in
this case.
Relying on dictionary defi nitions
of “sex” which referred to
genitals, Hobby Lobby insisted to
the Commission and again to the
court that it had not violated the
statute, since the statute allowed
employers to provide separate restrooms
for their male and female
employees. The court noted, however,
that the public accommodations
provision, which also forbids
gender identity discrimination,
did not have such a provision, and
that Sommerville was suing both
as an employee and as a member
of the public who wanted to use
the restroom when in the store as
a customer.
More to the point, however, the
court rejected the argument that a
dictionary defi nition of “sex” based
on genitals was dispositive of the
issue. The Human Rights Act itself
defi nes sex as “the status of being
male or female.” “The phrasing
of the defi nition is broad,” wrote
Justice Shostok: “It does not draw
distinctions based on genitalia,
the sex marker on a birth certifi -
cate, or genetic information.” And,
it uses the word “status” which is,
wrote the judge, “a state of being
that may be subject to change.”
For example, an employee’s marital
status or resident status might
change while they are employed,
and so, for purposes of the law,
may the status of being “male”
or “female” as recognized by the
state.
The court also pointed to the
wording of the statute. When Illinois
added the term “sexual orientation”
to the law, it defi ned that
term as including “gender-related
identity, whether or not traditionally
associated with the person’s
designated sex at birth.” Thus, the
legislature banned discrimination
because of gender identity as an
aspect of sexual orientation discrimination,
and recognized that
a person’s gender identity could
be different from their genital sex
identifi ed at birth. Illinois’ statute
is unusual in this regard, but
their amendment took place before
it became more common for state
and local governments to add the
term “gender identity” directly to
the list of prohibited grounds of
discrimination, and they have
never gone back to revise the law,
as the state’s courts correctly applied
the statutory defi nition to
protect transgender people from
discrimination.
“Given the interrelationship between
‘sex’ and gender identity
in Illinois law,” wrote the judge,
“the record establishes that Sommerville’s
sex is unquestionably
female,” so banning her from using
the women’s restroom was
defi nitely discriminating against
her because of her sex. As to the
dictionary defi nitions, wrote the
court, “the Act provides a clear
defi nition of ‘sex,’ eliminating any
need to look further. Moreover, the
Act’s defi nition of ‘sex’ nowhere includes
any restriction of that term
on the basis of reproductive organs
and structures, and we may not
insert such a limitation into the
statute.”
The court also rejected Hobby
Lobby’s objection to the amount of
the damages, which they claimed
was “excessive.” The standard of
judicial review for a Commission
damage award is “abuse of discretion.”
The court found that the Commission
had justifi ed the amount
by its factual fi ndings about the
impact of Hobby Lobby’s actions
on Sommerville, and the duration
of that impact. In some other cases,
the Commission had awarded
emotional distress damages in the
$50,000 range where the discrimination
lasted a year to a year-anda
half. In this case, Sommerville
suffered for fi ve or more years, so
an award of $220,000, including
attorneys’ fees, was not excessive,
and a legitimate exercise of discretion.
In addition, the court granted
Sommerville’s motion to send the
case back to the Commission so it
could revise the damage award upwards
to take account of her exclusion
from the women’s facilities for
the additional time that the Commission’s
access order was stayed
during the appeal.
Sommerville was represented
in opposing Hobby Lobby’s appeal
by Chicago attorney Jacob
Meister, and the state’s Attorney
General and Solicitor General’s
offi ce represented the Commission.
Attorneys from Lambda Legal
and the Illinois chapter of the
ACLU, as well as cooperating attorneys
from Latham & Watkins,
participated as amicus advocates
in support of the Commission’s
ruling.
To Advertise Contact: Gayle H. Greenberg
718-260-4585 • ggreenberg@schnepsmedia.com
AUGUST 26 - SEPTEMBER 8,10 2021 | GayCityNews.com
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