Transgender victory over Hobby Lobby could have national impact
LGBTQ advocates say the "sweeping" ruling could be used to attack “bathroom bills” and trans sports bans across the country.
Aug. 18, 2021, 12:58 PM EDT
By Dan Avery
An appellate court deciding Hobby Lobby violated Illinois anti-discrimination law by denying a transgender employee access to the women’s restroom could have nationwide implications, experts say.
Meggan Sommerville, a trans woman who has worked at a Hobby Lobby location in Aurora for more than 20 years, has been denied access to the store’s women’s room since transitioning at work in 2010. As a result, she has had anxiety and recurring nightmares and has been forced to limit her fluid intake, according to filings.
On Friday, the Illinois 2nd District Appellate Court upheld a lower court decision that determined the crafts chain violated the Illinois Human Rights Act both as an employer and as a place of public accommodation.
“Sommerville is female, just like the women who are permitted to use the women’s bathroom,” the three-judge panel said in its decision. “The only reason that Sommerville is barred from using the women’s bathroom is that she is a transgender woman.”
The ruling is one of first impression, meaning it presents a legal issue that has never been decided in the court’s jurisdiction.
“They stuck to the law,” Sommerville, 51, told Forbes. “This is a precedent-setting case in Illinois, because the Human Rights Act has never been tested in this way in Illinois, and actually in the country.”
Jim Bennett, director of the Illinois Department of Human Rights, said the decision underscored that trans people in the state “have strong protection from discrimination.”
“Ms. Sommerville’s experience of discrimination is certainly not unique, as too many of our transgender friends and neighbors continue to face acts of discrimination and hate,” Bennett said in a statement. “With this decision, the IDHR has been given a clear path to enforce the Commission’s orders concerning the rights of trans persons.”
Jacob Meister, who represented Sommerville, went further, telling Bloomberg Law the decision had national implications and will “start the process of courts around the country addressing the issue of bathroom access.”
Camilla Taylor, litigation director for the LGBTQ legal advocacy group Lambda Legal, agrees the ruling could have a broad impact in a variety of areas and jurisdictions.
“I think other states will generally be able cite this ruling, because of how sweeping it is,” Taylor said. “This is not limited to employment. This is the public policy of the state of Illinois. The court went out of its way to knock down every justification for treating trans people differently in public. It made it clear there’s no justification.”
While the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, determined discrimination based on sex includes sexual orientation and gender identity, it didn’t address access to sex-segregated facilities, services or sports teams.
“You can’t argue it’s not sex discrimination to deny someone access to a bathroom or a locker room,” Taylor said.
Not only could the ruling be used by opponents of so-called bathroom bills, she added, it could be relevant to the legal fight against legislation prohibiting transgender girls from playing on female sports teams.
At least nine states have enacted such sports bans, according to the Movement Advancement Project.
“It will have big ramifications in all kinds of aspects of life — in education, in business, in gyms and sports,” Taylor said. “It’s indicative of applying nondiscrimination principles to sex-segregated areas. It makes clear that gender identity determines sex.”
Hobby Lobby could appeal the ruling to the Illinois Supreme Court and theoretically take it all the way to the U.S. Supreme Court. Attorney Whitman Brisky, who represented the company, did not immediately reply to a request for comment.
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