Hobby Lobby Stores, Inc. v. Sommerville, 2-19-0362

• Court: United States Appellate Court of Illinois
• Writing for the Court: JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
• Citation: 2021 IL App (2d) 190362,186 N.E.3d 67,452 Ill.Dec. 620
• Parties: HOBBY LOBBY STORES, INC., Petitioner, v. Meggan SOMMERVILLE and the Human Rights Commission, Respondents.
• Docket Number: 2-19-0362
• Decision Date: 13 August 2021

2021 IL App (2d) 190362
186 N.E.3d 67
452 Ill.Dec. 620

HOBBY LOBBY STORES, INC., Petitioner,
v.
Meggan SOMMERVILLE and the Human Rights Commission, Respondents.

No. 2-19-0362

Appellate Court of Illinois, Second District.

Opinion filed August 13, 2021

Whitman H. Brisky and Terry S. Lu, of Mauck & Baker, LLC, of Chicago, for petitioner.

Jacob Meister, of Jacob Meister & Associates, of Chicago, for respondent Meggan Sommerville.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Evan Siegel and Maura Forde O'Meara, Assistant Attorney General, of counsel), for other respondent.

Camilla B. Taylor and Kara N. Ingelhart, of Lambda Legal Defense & Education Fund, Inc., of Chicago, Sasha J. Buchert (pro hac vice) and Diane Flynn (pro hac vice), of Lambda Legal Defense & Education Fund, Inc., of Washington D.C., Avatara A. Smith-Carrington (pro hac vice), of Lambda Legal Defense & Education Fund, Inc., of Dallas, Texas, Ethan Rice (pro hac vice), of Lambda Legal Defense & Education Fund, Inc., of New York, New York, and Gregory R. Nevins (pro hac vice), of Lambda Legal Defense & Education Fund, Inc., of Atlanta, Georgia, for amici curiae Lambda Legal Defense & Fund, Inc., and Equality Illinois.

John Knight, Ghirlandi Guidetti, Carolyn Wald, Ameri Klafeta, and Emily Werth, of Roger Baldwin Foundation of ACLU, Inc., and Terra Reynolds, Nicholas J. Siciliano, Renatta A. Gorski, and Edwin D. Abundis, of Latham & Watkins, LLP, both of Chicago, for amici curiae American Civil Liberties Union of Illinois et al.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

186 N.E.3d 75

452 Ill.Dec. 628

¶ 1 This appeal raises an issue of first impression in Illinois: whether an employer violates the Illinois Human Rights Act (Act) ( 775 ILCS 5/1-101 et seq. (West 2010)) by denying a transgender woman the use of the women's bathroom. The Human Rights Commission (Commission) found that the petitioner, Hobby Lobby Stores, Inc., violated both article 2 of the Act (prohibiting discrimination based on, among other things, gender identity, in the terms and conditions of employment) and article 5 (prohibiting such discrimination in the provision of facilities in a place of public accommodation). It awarded the respondent, Meggan Sommerville, damages and injunctive relief requiring Hobby Lobby to grant Sommerville access to the women's bathroom.

¶ 2 Hobby Lobby appeals, arguing that its policy of regulating bathroom access based upon users' "sex"—which, it contends, means their reproductive organs and structures—does not violate the Act. It also argues that the damages awarded were too high.¹ We affirm.

¶ 3 I. BACKGROUND

¶ 4 The following facts are drawn from the factual findings of the administrative law judge (ALJ), which were adopted by the Commission. Hobby Lobby does not challenge any of these factual findings on appeal.

¶ 5 Sommerville, who was born in 1969, was designated as male at birth and given a boy's name. Hobby Lobby hired Sommerville in July 1998. A few years later, Sommerville was transferred to Hobby Lobby's East Aurora store. Sommerville was present at the store as a customer as well as an employee. The restrooms at the store, which are used both by employees and customers, are designated by sex. It is undisputed that the store is not only Sommerville's workplace but also a "public place of accommodation" under the Act. Hobby Lobby also does not dispute that access to a bathroom can be part of the "terms, privileges or conditions of employment" covered under the Act. Id. § 2-102(A).

¶ 6 In 2007, Sommerville began transitioning from male to female. In 2009, she disclosed her female gender identity to some staff at Hobby Lobby, and began medical treatment that resulted in female

452 Ill.Dec. 629

secondary sex characteristics such as breasts and the absence of facial hair. In early 2010, she began to use her female name and appear at work in feminine dress and makeup, without objection from Hobby Lobby. In July 2010, she obtained a court order legally changing her name to Meggan Renee Sommerville, and a new Illinois driver's license and Social Security card, both of which showed her new name and identified her as female.

¶ 7 On July 9, 2010, Sommerville formally informed Hobby Lobby of her transition and her intent to begin using the women's bathroom at the store. Hobby Lobby changed Sommerville's personnel records and benefits information to reflect her female identity. However, Hobby Lobby refused to allow Sommerville to use the women's bathroom at the store. Faced with an initial demand that she produce "legal authority" requiring it to allow her to use the women's bathroom, Sommerville provided Hobby Lobby with a variety of documentation including her driver's license, Social Security card, and name change court order; a letter from her medical providers identifying her as a female transgender individual, describing the transition process, and urging that she be allowed to use the women's bathroom; and a copy of the Act and similar statutes from Iowa and Colorado. However, Hobby Lobby continued to refuse to allow her to use the women's bathroom.

¶ 8 Sommerville occasionally used the women's bathroom at the store despite Hobby Lobby's policy. However, Hobby Lobby assertively enforced its policy, ordering employees to report Sommerville if she tried to use the women's bathroom. On February 23, 2011, she was given a written warning for entering the women's bathroom at the store. Sommerville testified that she was "emotionally devastated" by the discipline, and her supervisor testified that she was "very upset" and "broke down crying." In February 2013, she filed complaints with the Commission, alleging that she had been discriminated against on the basis of her gender identity in violation of articles 2 and 5 of the Act, which cover employment and public accommodations.

¶ 9 Over the course of the litigation, Hobby Lobby repeatedly changed its precondition for Sommerville's use of the women's bathroom, at one point requiring that Sommerville undergo surgery, and then requiring that she produce a birth certificate reflecting her sex as female. In December 2013, Hobby Lobby installed a unisex bathroom at the store. Store employees and customers were permitted to use either the bathroom corresponding to their sex or the unisex bathroom. However, Hobby Lobby still did not permit Sommerville to use the store's women's bathroom. Sommerville testified that, in the face of Hobby Lobby's continued denial of access to the bathroom matching her gender identity, the availability of the unisex bathroom did not ameliorate her feeling of being singled out for different treatment because of her transgender status. 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."

¶ 10 Regarding Sommerville's damages, the Commission found that Sommerville had suffered and continued to suffer emotional distress caused by Hobby Lobby's denial of access to the women's bathroom at the store. Although Sommerville was permitted to use the men's bathroom at the store, such use caused her anxiety, as she had to engage in "defensive maneuvers" before entering, such as checking and waiting to make sure that no one else was using the bathroom and attempting to ensure that no one observed her enter, due to her female appearance. She was anxious

186 N.E.3d 77

452 Ill.Dec. 630

for her safety once she was inside, as "the violence against the transgender community is very well documented" and she was afraid of people's reactions if they learned she was there. She also felt embarrassed and humiliated by being a woman in the men's bathroom. If she instead left the store to use the women's bathroom at a neighboring business, she had to consider the number of occasions, length of time needed, and logistics so as not to negatively affect her employment duties. Sommerville testified that she "ended up having to structure [her] life around how often [she] would be able to use the restroom."

¶ 11 As a result of Hobby Lobby's ban on her using the women's bathroom at work, Sommerville was driven to try various ways of coping with her need to use the bathroom. For a couple of years, she was able to "hold it" and refrain from using the bathroom until her lunch break. In 2012, however, she was diagnosed with a medical condition that led to her needing to use the bathroom three or four times each day. She then began limiting her fluid intake and not eating breakfast, even when her family was eating. If she left the store to use the bathroom at nearby businesses, she had to punch out from her work shift and walk about 10 minutes each way, a walk that occurred in foul or fair weather.

¶ 12 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 fluid intake.

¶ 13 After the parties...