Title VII of the Civil Rights Act of 1964 is the federal law that protects individuals from discrimination and harassment “because of such individual’s race, color, religion, sex, or national origin.” In Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020), the United States Supreme Court held that firing an employee, at least in part, because the employee is homosexuality or transgender status violates Title VII. of the employee because consideration of an employee’s LGBTQ+ status implicitly requires consideration of that employee’s sex. (Best Law Read: What does Bostock v. Clayton County mean to the LGBTQ Community?). Essentially, the Supreme Court held that you cannot consider sexual orientation and gender status without considering sex and gender. However, in doing so, the United States Supreme Court expressly held open the issue of bathroom usage:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ “ refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S.F.R., 548 U.S. at 59, 126 S.Ct. 2405. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
Id. at 1753. Since that time, there has been very little Court guidance on this issue. For a while, the only direction would be through analogy based on Title IX holdings. In Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878, 210 L. Ed. 2d 977 (2021), the United States Court of Appeals for the Fourth Circuit held: “After the Supreme Court’s recent decision in Bostock …, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex,’” and thus, violated Title IX). Given the United States Supreme Court denial of certification to review this issue, this decision should be given more weight. Several district courts have cited Grimm with approval.
Since Bostock, the only other United State Court of Appeals to address the bathroom issue has been the United States Court of Appeals for the Eleventh Circuit, which has flip-flopped on the issue and is currently in the process of reconsidering it again. See Adams v. Sch. Bd. of St. Johns Cty., Fla., 3 F.4th 1299, 1304 (11th Cir.), reh’g en banc granted, 9 F.4th 1369 (11th Cir. 2021).
Fortunately, two different state courts have weighed in on this issue.
Vroegh v. Iowa Dep’t of Corr., No. 20-0484, 2022 WL 981824 (Iowa Apr. 1, 2022)
Jesse Vroegh worked as a registered nurse for the Iowa Department of Corrections (“IDC”) starting in 2009. Vroegh, was assigned as female at birth and presented as female when he was hired by the IDC. A few years after starting with eh IDC, Vroegh started hormone therapy. In 2014, Vroegh identified himself as male, including changing his birth certificate, driver’s license, Social Security card, nursing license, and permit to carry firearms. He changed his name from “Jessie Sue Vroegh” to “Jesse Samuel Vroegh.” In the middled of 2015, Vroegh regularly used the men’s restrooms in public places and requested permission from the IDC to use the male restrooms and locker rooms at work. In November 2015, Vroegh made the request again. At this point, IDC directly denied this request, instead offering convert two single-stall gender-specific restrooms to gender-neutral restrooms. These bathrooms were in another building. Vroegh thought this solution a temporary and when he found out that this was the permanent solution, he complained again. Shortly thereafter, IDC fired Vroegh claiming that he sent confidential inmate information to a third party, which Vroegh said was a lie. (Best Law Read: Employment Discrimination Question: What Is Pretext?).
Vroegh filed a lawsuit against IDC and other actors for sex discrimination and gender identity discrimination.
The case went to trial before a jury. During jury deliberations, the jury sent a question to the court asking: “How are we defining sex vs. how are we defining gender identity? i.e. is sex = biological sex or sex on legal documents or should it [be] considered the same as gender identity in the instructions?” The court answered the jury as follows: “Sex is a term used to assign or identify an individual’s gender. Gender identity is but one component of the concept of sex. Gender identity is an individual’s sense of their own gender which may or may not comport with the sex or gender assigned to them at birth.”
The jury found for Vroegh on his against the IDC for denying him use of the men’s restrooms and locker rooms and awarded $100,000 in past emotional distress damages. IDC appealed this decision. On appeal, IDC argued that there were two nondiscriminatory reasons to block Vroegh from using the men’s room access: (1) IDC believed other staff members would have a negative view of it, and (2) there was agreement with Vroegh to use a unisex bathroom.
As an aside, this follows the same argument that was used to block people of color from using White only bathrooms – the Whites won’t like it and we’ve provided separate but equal bathrooms. The Iowa Supreme Court rejected these arguments:
As to the first reason, discriminatory action doesn’t somehow shed its unlawfulness simply because it’s done to placate the real or perceived biases of others. See Schroer v. Billington, 577 F. Supp. 2d 293, 302 (D.D.C. 2008) (“Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices.”). If that were reason enough, surely much discrimination that our laws now outlaw could continue unabated under the guise of appeasing the discriminatory sensibilities of others. The State’s claim that it acted to protect the concerns of others, without more, is not enough to establish the action was “not a pretext for discrimination.” Woodbury Cnty., 335 N.W.2d at 166 (quoting Loeb, 600 F.2d at 1012 n.6).
As to the second reason, a factual dispute arose at trial about the time period that Vroegh agreed to use the unisex restrooms in the separate building. Vroegh argued that he agreed to use the unisex restrooms only temporarily; the State argued that Vroegh agreed to use them indefinitely. But this factual dispute is immaterial to our resolution of the larger legal issue here. Regardless of the duration, Vroegh didn’t waive his rights under the Iowa Civil Rights Act by agreeing to use the unisex restrooms.
Id. at *4. Therefore, transgender employees in Iowa can use the bathroom with their designated gender.
Hobby Lobby Stores, Inc. v. Sommerville, 2021 IL App (2d) 190362
Meggan Sommerville, born male, was hired by Hobby Lobby in July 1998. By 2007, Sommerville began transitioning to being female, and in 2009, began medical treatment affirm her gender, such as adding breasts and removing facial hair. In early 2010, she transitioned to her female name and began dressing as woman at work. In July 2010, Sommerville legally changing her name and got a new Illinois driver’s license and Social Security card, both of which of which reflected her gender as female. Hobby Lobby changed Sommerville’s personnel records and benefits information to show that she was female. But Hobby Lobby blocked Sommerville from using the women’s bathroom until Sommerville provided “legal authority” requiring it to allow her use of the women’s bathroom. In response, Sommerville provided Hobby Lobby with her driver’s license, Social Security card, and name change court order; and 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. Sommerville pointed her employer to the Illinois Human Rights Act. Nonetheless, Hobby Lobby continued to block to allow Sommerville’s use the women’s bathroom and gave her written discipline for doing so.
In December 2013, Hobby Lobby installed one bathroom designated as unisex but refused Sommerville’s request to use the women’s bathroom. Sommerville testified that the unisex bathroom did not change her feeling being singled out because 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.”
The court recognized the damages caused by forcing transgender employees to use the opposite bathroom than their identities. “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 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.” Sommerville further testified that she “ended up having to structure [her] life around how often [she] would be able to use the restroom.” Unfortunately, that was not the worst of it. For a several years, Sommerville felt forced to “hold it” until her lunch break. After being diagnosed with a medical condition required Sommerville to use the bathroom three or four times per shift, she started limiting her fluid intake and not eating breakfast. Sommerville further suffered from ongoing nightmares, headaches, gastric problems, muscle cramps, and dehydration resulting from her low fluid consumption.
Based on these facts and applying Illinois law, the Illinois Second District Court of Appeals held:
There is no real dispute that, in this case, Hobby Lobby is barring Sommerville from using the women’s bathroom 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. Hobby Lobby’s conduct thus falls squarely within the definition of unlawful discrimination under the Act, as it treats Sommerville differently from all other women who work or shop at its store, solely on the basis that her gender identity is not “traditionally associated with” her “designated sex at birth.”
Id. at ¶ 24. While this appears to be a great win for transgender employees, the Illinois granted certification to consider this matter on appeal, leaving this holding in doubt. See Hobby Lobby Stores, Inc. v. Sommerville, 2021 IL App (2d) 190362, appeal allowed, No. 127664, 2021 WL 6500389 (Ill. Nov. 24, 2021).
I’m transgender. Can my employer tell me what bathroom I have to use?
Best Employment Lawyer Answer: The law is really unclear and still developing. Therefore, there is no real clear answer. Your best option is to call an LGBTQIA employment rights attorney to discuss the specifics of your case. Call The Right Attorney at Spitz, The Employee’s Law Firm to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our Cleveland, Cincinnati, Columbus, Toledo and Akron, Ohio and Detroit, Michigan attorneys now to get help or advice. Your employment rights are constantly changing and the best way to find out if you can sue your boss, manager, supervisor or employer for discrimination, harassment, or wrongful termination is to call Spitz, The Employee’s Law Firm and talk to its attorneys, who are experienced and dedicated to protecting the rights of employees just like you.
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