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“Sommerville’s sex is unquestionably female,” ruled the Illinois Second District Appellate Court on Friday, “just like the women who are permitted to use the women’s bathroom.”
With that crucial determination, the judges unanimously concluded that Hobby Lobby Stores Inc. violated the law in Illinois by denying a transgender woman employee access to its women’s bathroom in the store in which she’s worked for almost 23 years.
“They stuck to the law,” Meggan Sommerville, 51, told me in a phone interview. “I think that, to me, was as much of a victory as anything else; That the law in Illinois is so clear that even conservative judges couldn’t go any other way with it.”
A Historic Ruling
“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,” Sommerville said.
According to her lawyer, the decision applies statewide to every transgender individual and every public bathroom, not just the Hobby Lobby store in East Aurora, Ill.
“It is so broad, sweeping, when you read through it,” said attorney Jacob Meister, who has represented Sommerville for more than nine years of her 11-year battle to use the ladies room at work, working alongside attorney Katie Christy.
“The court basically says this was not just transgender discrimination, it was sex discrimination, which is what federal courts have found. What this court said is, as a matter of Illinois law, Meggan’s sex is female. She not only has a female gender identity, but as a matter of Illinois law, her sex is female.” —Jacob Meister
A Brief History of Bathroom Battles
Efforts to prevent transgender people from using public bathrooms that match their gender identity are nothing new, of course.
North Carolina’s infamous HB2 law, which restricted the use of public bathrooms to the sex on birth certificates, flushed away $600 million in lost revenue in 2016, resulting from boycotts of state businesses and events. A repeal that didn’t remedy all of the contentious issues was enacted the following year.
As The Atlantic reported, an anti-discrimination ordinance in Houston, Texas was soundly defeated in 2015 mostly because of a successful fear-mongering campaign, perpetuating the myth that allowing trans women into ladies rooms would put cisgender women and girls at risk of male predators. It was built around the slogan: “No Men in Women’s Bathrooms.”
In July 2021, a federal judge blocked Tennessee from enforcing a law requiring businesses to post a signs, warning customers that transgender patrons may use the bathrooms matching their gender identity.
Why Hobby Lobby Lost
In its arguments, Hobby Lobby unsuccessfully claimed Sommerville, who came out to family in 2009 and transitioned at work in 2010, could simply use the unisex bathroom it installed in 2013. The company also argued that she could use the ladies room if she underwent gender affirming surgery and if she changed her birth certificate; Lawyers for Hobby Lobby claimed that by blocking her access to the ladies room, the store was protecting women.
The appellate court rejected all of these claims Hobby Lobby made in its argument for the so-called right to discriminate against Sommerville.
Here are the four key findings by Appellate Court Justice Mary Seminara-Schostok, who was joined unanimously by fellow Appellate Court Justices Kathryn E. Zenoff and Ann B. Jorgensen—three white, cisgender, heterosexual, conservative women in their 60s and 70s.
- “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).”
- “Hobby Lobby argues that it was simply acting as a reasonable employer and enforcing its rules about separate bathrooms by keeping a male out of the women’s bathroom, but Hobby Lobby itself recognizes that Sommerville is female. Hobby Lobby’s unlawful discrimination was not designating bathrooms by sex, but denying Sommerville access to the bathroom that matched her sex.”
- “The existence of the unisex bathroom is irrelevant to the main issue in this case, which is whether Hobby Lobby violated Sommerville’s civil rights in denying her, but not other women, access to the women’s bathroom. Hobby Lobby’s provision of a unisex bathroom available to all employees and customers cannot cure its unequal treatment of Sommerville with respect to the women’s bathroom.”
- “The final argument raised by Hobby Lobby regarding its bathroom ban—that it was necessary to protect other women from Sommerville—lacks support in either the record or logic… There is simply no evidence that Sommerville’s use of the women’s bathroom would pose a safety risk to other women… The presence of a transgender person in a bathroom poses no greater inherent risk to privacy or safety than that posed by anyone else who uses the bathroom.”
Sommerville explained what it’s been like since she was first written up for using the ladies room in February 2011. She developed a medical condition, fibromyalgia, which impacts her thyroid and results in a more frequent need to empty her bladder.
“Every time you go to the bathroom, sometimes it’s four or five times a day, I have to use the unisex bathroom,” she said. What if somebody else is using it? “I wait, but I don’t want to feel like a creeper and be waiting outside the bathroom. All the bathrooms are at the front of the store. So, I walk back to my shop at the back of the store and wait until I have another opportunity, and then go back up and hopefully somebody is not there.”
The justices also denied Hobby Lobby’s attempt to avoid paying $220,000 in damages awarded by the Human Rights Commission, and opened the door to more: “We remand this case to the Commission for a determination of any additional damages and attorney fees that may be due.”
The ruling lifts a stay ordered by the appellate court in 2019, and enforcement of its order now moves back to the Illinois Department of Human Rights, which originally denied Sommerville’s claim in 2012, then reversed itself. In 2015, an administrative law judge ruled Hobby Lobby violated the state’s Human Rights Act, as Daily Kos reported. So what took so long to get this decided? Meister said when Illinois elected Republican Bruce Rauner governor in 2014, his Republican appointees to the commission were less than interested in pursuing her claim. “They took this case and somebody put it in a file drawer and locked it up for four years. So, it didn’t move for quite a long time, and that was part of the delay of 10 years to get to the appellate court.”
“When the judge who ruled on this case some years ago, there was all this media coverage that I had won the case. But, no, I didn’t, because nothing was concrete yet, because you knew they were going to appeal everything,” Sommerville said. “This is one where I can literally look at the order and say, ‘I won.’”
“Hobby Lobby has been fighting this case tooth and nail for years,” Meister said. The national chain of home crafts stores won a landmark ruling at the U.S. Supreme Court in March 2014, Burwell v. Hobby Lobby, that decided for-profit corporations have the same protection for religious beliefs as churches and individuals. Although Hobby Lobby has not responded publicly to the ruling or vowed to appeal, both Sommerville and Meister said they are prepared to fight this all the way to the Supreme Court.
Will Hobby Lobby Play the Christianity Card?
Although it was not a part of the appellate case, that potential next round could feature a religious objection to Sommerville’s claim. Christian groups like the Alliance Defending Freedom have already gone to court to fight transgender inclusion in school sports and access to affirming healthcare. Hobby Lobby’s website is full of Christian messaging and commitments to religious expression. “Honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles,” is the corporation’s mission statement. “We believe it is by God’s grace and provision that Hobby Lobby has endured. He has been faithful in the past, we trust Him for our future,” said founder David Green.
While acknowledging scripture appears to reference gender expression, the LGBTQ advocacy group, Human Rights Campaign, argues those opposed to transgender identity are ignoring the most revered lessons from the Bible about love, acceptance and judgment of others.
Also important is that the Supreme Court ruled in 2020 that transgender Americans are protected from workplace discrimination in Bostock v. Clayton County. And in June 2021, the high court declined to hear yet another appeal of Gavin Grimm’s case, allowing the victories he won in lower courts, to use the bathroom matching his gender identity, to stand.
When Hobby Lobby’s lawyers cited precedence in a 20-year-old case in Minnesota, Goins v. West Group, the appellate justices pointed to how that lone decision doesn’t trump the clarity of Illinois law, and cited case after case in which transgender rights have been affirmed, including by the Supreme Court.
Meister said what these courts are saying is that transgender people are entitled to the same civil rights protections as everyone else, and that is not “special rights,” as opponents claim.
“The right to human dignity is a civil right. It’s not a special right to have your dignity. To use the bathroom at work, without being humiliated and frightened and segregated, is a fundamental right,” he said. “And that’s what we work every day to protect, these people’s right, to just feel safe, secure and welcome in all aspects of life.”
Meister, who is an out gay man, founded The Civil Rights Agenda, an LGBTQ advocacy nonprofit organization to take on these kinds of cases.
Are Her “Darkest Days” Behind Her?
As for many out transgender people, this legal battle wasn’t Sommerville’s only struggle.
“I have dealt with depression since I was 16,” said Sommerville. “I had to live with losing my marriage, losing my kids; they have gotten to a point where they just don’t contact me. They don’t want me involved in their life. There’s a whole host of things to just pile on all the emotional baggage that I have to carry, and to top it all off with knowing I am not being respected enough by the powers that be in your work that they don’t see you equally.”
So, what does the ruling mean to her?
“In my darkest days of dealing with the press and this whole emotional rollercoaster and all the other things that are going on in my life, it was this that kept me saying, ‘I’m going to wake up in the morning.’” she said. “I have an order that says the judge is right, Hobby Lobby is wrong.”
Meister applauded Sommerville for her perseverance.
“She’s been dedicated to bringing about change that has an impact on the transgender community and helped set the law,” said Meister. “So, she has had perseverance and a steadfastness to her dedication to bringing about change and making sure that there’s a good case law on the books for anyone else under the Illinois Human Rights Act. And frankly, it has national implications, because courts have been reluctant to address the bathroom issue, and she has a unique situation because she continues to work there, continues to be denied the right to use the women’s room.”
Hopefully, never again.
After winning her case on Friday, Sommerville celebrated with her attorney, but the very next day, she returned to work at Hobby Lobby, where she is the manager of the custom framing department—with the appellate court order in hand. Will she now use the ladies room?
“I might,” she said. “I have a copy of the order with me. And it says that the stay has been lifted and the only reason why it’s being remanded back down to the department of human rights here in Illinois is because that agency is responsible for the enforcement of the order.”
One might wonder why Sommerville didn’t just quit.
“I have a very good clientele that have been coming to me from before I transitioned,” said Sommerville. “That was one of my biggest fears, how my customer is going to react. I’ve been able to build a clientele that come to me and I’ve done practically everything in their homes because they like what I do. And it’s something I’m good at. How often are you going to find a job where your customers come to you and appreciate you for what you do?”
Hobby Lobby did not respond to a request for comment as of press time.
Note: The word “commission,” referring to the Illinois Human Rights Commission, was used in error by Sommerville in one quote, and in one instance by the author, and with her permission and in consultation with her attorney and the commission has been updated to reflect the Illinois Department of Human Rights, not the HRC.