Hobby Lobby may have won its infamous Supreme Court case to refuse to provide its female employees with contraception, but a state administrative judge recently ruled against the retailer for its ongoing refusal to allow a transgender employee access to the bathroom at one of its Illinois stores. In a decision back in May — revealed only this week — Administrative Law Judge William J. Borah ruled that Hobby Lobby violated the Illinois Human Rights Act when it refused to let long-time employee Meggan Sommerville use the women’s room after she transitioned.
Sommerville has worked for the Hobby Lobby in East Aurora, Illinois since 1998, and she still does. She began her transition in 2007, and in early 2010, officially switched her nametag for her new chosen name, which was made legally official later that year. Hobby Lobby was fine with recognizing Sommerville’s name, allowing her to dress and present as a woman, but drew the line at letting her use the women’s restroom.
Because she suffers from fibromyalgia, she has an increased need to use the restroom, but her only choices were to use the male restroom, or wait up to six hours for a lunch break that allowed her to use the restroom at a nearby fast-food restaurant. When she tried to use the women’s room once in 2011 as a customer — she was off the clock — she received a written warning. Eventually, in 2014, Hobby Lobby constructed a separate gender-neutral single-use restroom, which is still the only restroom Sommerville is allowed to use.
Hobby Lobby continually moved the goal post as to what Sommerville would have to provide in order to be allowed access to the women’s room. At first, she was told she had to present legal authority of her gender change, so she gave them a copy of her court-ordered name change, her changed driver’s license, her changed social security card, a written medical explanation and verification of her transition from her health provider, and a copy of the Illinois Human Rights Act, which protects against discrimination on the basis of gender identity.
Then, that wasn’t good enough. Hobby Lobby then required proof that she had undergone surgery on her genitals. In 2014, it changed again to changing her birth certificate; Illinois currently requires citizens to undergo some form of surgery in order to change the gender marker on their birth certificates.
Borah rejected these requirements. “Respondent contends that being anatomically correct makes a female,” he wrote. “However, absence of male genitalia does not make a female, as that could occur by illness or injury.” He also pointed out that enforcing this policy against employees and customers “could prove difficult” and possibly require “using a version of ‘stop and frisk’ prior to the facility’s use.”
He didn’t leave any room for doubt on this point: “Nothing in the Act makes any surgical procedure a prerequisite for its protection of sexual related identity. Therefore, Respondent’s unilateral surgical requirement is untenable.”
Furthermore, Borah was unconvinced by Hobby Lobby’s arguments that Sommerville’s presence in the bathroom would make others uncomfortable. “A co-worker’s discomfort cannot justify discriminatory terms and conditions of employment. The prejudices of co-workers or customers are part of what the Act was meant to prevent.”
He also ruled that the unisex single use restroom “segregates only her because of her gender related identity, and perpetuates different treatment, contrary to the Act.” In a telling footnote, Borah added, “However, the ‘unisex’ restroom may resolve any concern by those who are allegedly uncomfortable by Complainant, by giving them the option of using it.”
Unfortunately, five months later, Sommerville’s experience has not improved; she’s still not allowed to use the women’s restroom. “The reality is nothing has changed,” she told the Windy City Times. “It’s humiliating. I have had to restructure my life to watch how much I drink and eat before going to work in an effort to try to avoid using the restroom as much as possible but my fibromyalgia is aggravated with dehydration which just compounds the problem at work.”
Borah’s order was a recommended ruling, but the Illinois Human Rights Commission still has to affirm it before it becomes final. In the meantime, Sommerville otherwise loves her job. “Why should I quit?” she said. “I’m good at what I do. I love what I do. If I quit, I give a right to any other company to discriminate against their employee in the hopes that they will quit so they will be done with them.”