Hobby Lobby has just learned that
not all judges are going to be on its side. In a discrimination suit filed against the company by a transgender employee, a judge back in May—the ruling was just made public—that one of the company's stores could not refuse long-time employee Meggan Sommerville access to the women's restroom after her transition.
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.
Administrative Law Judge William J. Borah slapped that down, ruling that Hobby Lobby violated the Illinois Human Rights Act. "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." Borah also said that Hobby Lobby's concern that Sommerville's use of the women's restroom might make other employee's uncomfortable, stressing that 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 separate bathroom was not a solution.
Unfortunately for Sommerville, Borah's ruling wasn't final, but a recommendation to the state's Human Rights Commission, which hasn't yet affirmed it. That means Sommerville is still trying to deal with the bathroom issue while at work. She doesn't want to quit, she says because she loves her job and because she's fighting a larger cause. "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."