Tossing out a July decision, a full federal appeals court will hear a battle about whether a transgender male student should have been allowed to use boys’ bathrooms at a St. Johns County high school.

The 11th U.S. Circuit Court of Appeals on Monday vacated a July 14 ruling by a three-judge panel that said a St. Johns County School Board policy preventing Drew Adams from using boys’ bathrooms was “arbitrary” and violated equal protection rights.

After the 2-1 panel ruling, the school board asked the full Atlanta-based appeals court to hear the case --- a request known as seeking an “en banc” hearing.

The court issued a one-paragraph order Monday granting the request and vacating the panel ruling. As is common, the notice did not explain the court’s decision.

Adams was born a biological female but in eighth grade told his parents he was a transgender male, according to the July ruling. The lawsuit, which Adams and his mother filed in 2017, stemmed from Nease High School requiring Adams to use a gender-neutral, single-stall bathroom or girls’ bathrooms.

U.S. District Judge Timothy Corrigan ruled in favor of Adams in 2018, prompting the school board to appeal.

The appellate panel in July said the school district’s policy about bathroom use is arbitrary because it relies on information submitted when students enroll in the district, rather than on updated information. Adams enrolled in the district in fourth grade, with information listing him as a female, but he later obtained legal documents listing him as a male. He has graduated from Nease High School as the court fight has continued.

The panel said, in part, that the policy could lead to a transgender male being able to use boys’ bathrooms if he is listed as a male on enrollment information, while Adams was barred because his initial information listed him as female. The panel said the policy “runs afoul of the Fourteenth Amendment (guaranteeing equal protection) because it does not even succeed in treating all transgender students alike.”

“The school district gives no explanation for why a birth certificate provided at the time of enrollment takes priority over the same document provided at the time the bathroom policy is applied to the student,” said the panel ruling, written by Judge Beverly Martin and joined by Judge Jill Pryor. “And we have come up with no explanation of our own. Mr. Adams has a birth certificate and a driver’s license issued by the state of Florida stating that he is male. But the school district refuses to accept for the purposes of the bathroom policy Mr. Adams’s sex listed on those current government-issued documents.”

But Chief Judge William Pryor wrote a lengthy dissent to the panel decision.

“When shorn of misunderstandings of the school policy and the legal standards that govern sex-based classifications, this appeal is straightforward,” the chief judge wrote. “The school policy protects longstanding privacy interests inherent in using the bathroom, and it does so in an ancient and unremarkable way --- by separating bathrooms on the basis of sex. That policy is not unconstitutional.”

But in the majority opinion, Martin fired back at the dissent, writing that “this case is not about challenging sex-segregated bathrooms.”

“The policy turns solely on the information provided at the time of enrollment, and a transgender student who updates his documents prior to enrollment would not be barred from using the bathroom matching the sex on his legal documents,” Martin wrote. “This, of course, is in contrast to the treatment Mr. Adams received. Despite the dissent’s imagined parade of horribles, this opinion does not resolve any other issue of student privacy.”

In a document this month asking the full court to hear the case, attorneys for the school board argued that the panel ignored broader issues in the dispute.

“This case has always been about whether a definition of sex founded in the real and enduring biological differences between boys and girls substantially advances the important privacy interests of students to use the bathroom free from members of the opposite biological sex,” the document said. “Yet, the court has not answered that question. The school board requests that the entire panel of this court do so.”

An appeals court ruling that Hobby Lobby violated Illinois anti-discrimination law by denying a transgender employee access to a women’s washroom could have nationwide implications, experts say.

Meggan Sommerville, a trans woman who has worked at a Hobby Lobby store in Aurora for over 20 years, has been denied access to the store’s women’s room since her transition to work in 2010. As a result, she has had recurring anxiety and nightmares and was forced to limit her fluid intake, the documents said.

The Illinois 2nd District Court of Appeals on Friday upheld a lower court ruling that found the craft chain violated both Illinois human rights law as an employer and as a place of public accommodation.

“Sommerville is a woman, as are women allowed to use the female toilet,” the three-judge panel said in its ruling. “The only reason Sommerville is not allowed to use the women’s washroom is because she is a transgender woman. “

The ruling is a first impression, meaning it presents a legal issue that has never been decided within the jurisdiction of the tribunal.

“They followed the law,” Sommerville, 51, told Forbes. “This is a previous case in Illinois because human rights law has never been tested in this way in Illinois, and indeed in the country.”

Jim Bennett, director of the Illinois Department of Human Rights, said the ruling underscored that trans people in the state “have strong protection against discrimination.”

“Ms. Sommerville’s experience of discrimination is certainly not unique, as too many of our transgender friends and neighbors continue to face acts of discrimination and hate,” Bennett said in a statement. With this ruling, the IDHR has a clear path to enforce the Commission’s orders regarding trans rights. “

Jacob Meister, who represented Sommerville, went further, telling Bloomberg Law that the ruling had national implications and “will kick off the process in courts across the country to address the issue of toilet access.”

Camilla Taylor, director of litigation for LGBTQ legal advocacy group Lambda Legal, agrees the ruling could have a broad impact in various fields and jurisdictions.

“I think other states will generally be able to cite this ruling, because of its scope,” Taylor said. “It’s not just about employment. It is the public policy of the State of Illinois. The court went out of its way to eliminate all justifications for treating trans people differently in public. This clearly showed that there was no justification.

While the 2020 Supreme Court decision in Bostock v. Clayton County, Georgia, determined that sex discrimination includes sexual orientation and gender identity, it did not address access to gender-separated sports facilities, services or teams.

“You can’t pretend it’s not sex discrimination to deny someone access to a bathroom or a changing room,” Taylor said.

Not only could the ruling be used by opponents of the so-called toilet bills, she added, but it could be relevant to the legal fight against legislation banning transgender girls from playing in venues. women’s sports teams.

At least nine states have enacted such sports bans, according to the Movement Advancement Project.

“It will have big ramifications in all kinds of aspects of life – in education, in business, in gyms and in sports,” Taylor said. “It is revealing of the application of the principles of non-discrimination to areas of gender segregation. It is clear that gender identity determines sex.

Hobby Lobby could appeal the decision to the Illinois Supreme Court and theoretically go all the way to the United States Supreme Court. Lawyer Whitman Brisky, who represented the company, did not immediately respond to a request for comment.

The 2021 legislative session set a record for anti-transgender bills, according to the Human Rights Campaign, an LGBTQ rights group: Nearly 70 measures have been introduced in at least 30 states that would ban trans youth from participate in sports compatible with their gender identity, and at least 15 bills have been introduced that would prohibit trans people from accessing washrooms or locker rooms that match their gender identity.

The judiciary, however, has been more supportive: In addition to Bostock, the Supreme Court in June refused to consider a decision by the U.S. 4th Court of Appeals that ruled that transgender student Gavin Grimm had the constitutional right to use the boys’ washrooms at his school in Virginia.

The lower court ruled that policies prohibiting transgender students from accessing toilets that match their gender identity violated the equal protection clause of the 14th Amendment and Title IX of the 1972 Education Amendments.

CHICAGO — There’s a woman’s restroom at the East Aurora Hobby Lobby where Meggan Sommerville works, but for 10 years, she’s been barred from using it because she is transgender.

She has had to punch out of work and cross a parking lot in the rain or snow to access the bathroom at a fast-food restaurant, she said. She has used the men’s room, which is shared by both employees and customers. She has restricted her fluid intake and endured dehydration, muscle cramps and headaches, according to court documents.

So when Sommerville contemplated the Illinois Appellate Court’s ruling that she had the right to use the women’s restroom at work, she paused, took a deep breath and let it out slowly.

“It’s a huge, huge relief,” said Sommerville, 51, of Oswego. “It’s still an emotional roller coaster, because we don’t know how Hobby Lobby is going to respond, and we have a ways to go. But to have a court uphold unanimously: I can’t put into words the relief that this brings.”

Hobby Lobby could not be reached for comment. The company has the option of appealing the case to the Supreme Court of Illinois.

The Aug. 13 Appellate Court decision, which requires Hobby Lobby to allow Sommerville to use the women’s restroom and allows her to pursue $220,000 in damages awarded by the Illinois Human Rights Commission, is a “tremendous victory for the transgender community,” according to one of her lawyers, Jacob Meister of Chicago, who worked on the case with co-counsel Katherine Christy.

The court rejected Hobby Lobby’s argument that a person’s sex is determined by their reproductive organs and anatomy, and found that “Sommerville’s sex is unquestionably female.”

“The court affirmed in a very resounding way that a (transgender) person’s gender identity is recognized in Illinois law, and Illinois courts will enforce nondiscrimination against the transgendered,” Meister said.

Sommerville’s battle began shortly after she completed her transition to living as a woman in July 2010, with a new name, Social Security card and driver’s license. Hobby Lobby, where she had worked since 1998, changed her personnel records to reflect her female gender but balked at what has become a flashpoint in the transgender culture wars: access to a gender-appropriate bathroom.

Sommerville was informed that she wouldn’t be able to use the women’s restroom, according to court records.

In early 2011, she was written up for using the women’s room, an experience she has described as emotionally devastating. She was “very upset” and “broke down crying” according to court records. She looked for a lawyer and in February 2013, she filed complaints with the Illinois Human Rights Commission, saying Hobby Lobby was discriminating against her based on gender identity.

Hobby Lobby added a unisex bathroom in 2013 but continued to refuse Sommerville access to the women’s room.

The commission found Hobby Lobby violated the Illinois Human Rights Act, which prohibits discrimination based on gender identity in both workplaces and places of public accommodation, such as public restrooms. The commission determined that the company owed Sommerville $220,000 in damages, at the time the highest amount ever awarded by the commission for emotional distress.

The appellate court decision affirmed the commission’s order that Sommerville be allowed to use the women’s bathroom. And the court sent the case back to the Human Rights Commission to determine whether Sommerville is owed more than $220,000 due to continuing violations.

Sommerville, who has worked at Hobby Lobby for 22 years, stayed on during the legal battle.

“Why should they run me off, just because they don’t like who I am?” she said.

And besides, she said, she loves what she does. As the frame shop manager, she works one on one with clients, some of whom have been coming to her since before her male-to-female transition.

“They bring their artwork to me, all different types,” she said. “And they’re looking for my opinion, and to help them preserve their memories, and that’s a very rewarding job. I don’t want to give that up.”

There may be additional legal wrangling over the exact amount of financial damages, and Sommerville doesn’t know whether Hobby Lobby will pursue an appeal.

But on Tuesday, the signs were good.

Sommerville said when she came in to work, she was called into a manager’s office and told that from now on, she can use the women’s restroom. She kept her composure during the exchange she said, but when she left the office, she cried.

“I think I was more emotional hearing that than I was Friday,” she said, referring to the day the appellate court decision was released. “This really is over.”

 

The Second District Appellate Court of Illinois approved the expansive protections of the Illinois Human Rights Act for transgender individuals on Friday.

Stemming from the recent Hobby Lobby Stores, Inc. v. Sommerville case, the Court addressed issues of first impression, holding that transgender individuals in Illinois have the right to access restrooms corresponding to their gender identity. 

Charges were filed against Hobby Lobby after they denied Meggan Sommerville, a transgender woman access to the women's restroom. 

The Court agreed that Hobby Lobby violated the Act both as an employer and as a place of public accommodation by discriminating against Sommerville based on her gender identity.

"I'm pleased to see the court recognize Hobby Lobby's stance against its employee as what it is: discrimination based on gender identity," said Governor JB Pritzker. "Ours is a welcoming and inclusive state, and the Illinois Department of Human Rights will go toe to toe with any employer or business that tries to treat individuals differently because of their identity. Just last month, I convened a round table with leaders in the state's transgender, nonbinary, and gender-nonconforming community to connect with those on the ground, fighting these fights every day, on the work still left to do. In our continued efforts to shape a safer Illinois, my administration is on a mission to lift up and empower those who too often have been overlooked or forgotten."

"The Sommerville decision couldn't have been better for the transgender community in Illinois," said IDHR Director Jim Bennett. "It means that trans individuals have strong protection from discrimination under the Illinois Human Rights Act. Ms. Sommerville's experience of discrimination is certainly not unique, as too many of our transgender friends and neighbors continue to face acts of discrimination and hate. With this decision, the IDHR has been given a clear path to enforce the Commission's orders concerning the rights of trans persons. It is our expectation that Hobby Lobby will comply with the Court's opinion and allow Ms. Sommerville to exercise her right to use the women's bathroom."

The case primarily focused on determining whether prohibiting a transgender woman from accessing the women's restroom violated the Human Rights Act.

The Illinois Human Rights Commission heard the matter and ruled in Sommerville's favor. Still, Hobby Lobby refused to comply and persisted in denying Sommerville access to the women's restroom and chose to appeal the matter to the Second District Appellate Court. 

On Friday, the Court affirmed Sommerville's right as a transgender woman to use the women's restroom, categorically rejecting her employer's insistence that reproductive organs or structures are the sole determinants of a person's sex.

The Court highlighted how the definition of "sex" in the Illinois Human Rights Act is more expansive than the "dictionary definition." 

Notably, the Act does not treat "sex" as a fixed status or draw distinctions based on a person's genitalia, birth certificates, or genetic information. 

The decision also recognized that a person's gender identity is a valid basis for determining a person's sex under the law. 

The Court specifically addressed the evolution of Illinois law, noting examples such as a trans person's ability to obtain a birth certificate with a corrected sex marker or a corrected sex designation on a driver's license. 

In Sommerville's case, the State of Illinois recognized her gender identity as female when it changed her vital records. And Hobby Lobby recognized her female gender identity when it changed her personnel records. 

The Court also affirmed a business's authority under the Act to designate separate "male" and "female" restrooms while at the same time recognizing the right of all persons to access the bathroom that matches their gender identity. 

Prohibiting a person from accessing the restroom that matches their gender identity violates the Illinois Human Rights Act.

The Human Rights Commission awarded substantial damages to Sommerville, including the highest amount ever assessed for emotional distress. 

The Court rejected Hobby Lobby's contention that the damages were excessive and returned the case to the Commission for further consideration, acknowledging that she may be entitled to additional damages because of the appeal.

 As students head back to the classroom, many parents may be gearing up for important discussions like bullying. One student in Wilson County is raising awareness through a class project.

“When I was figuring out my identity in school, it was really difficult because I didn’t know if there was anybody I could talk to,” said Mackenzie Romer, a student at Green Hill High School.

Romer recently helped create a PSA about LGBTQ bullying. It’s a topic she says she can relate to.

“Some of our kids haven’t been in school since last school year, so we know there is a lot of social anxiety with children coming back to school,” said Dr. Monica Coverson, MNPS Director of Social Work & Trauma Informed Schools.

MNPS’s Dr. Monica Coverson says it’s important for parents to create an open space for topics like bullying.

“We ask the parent to remain calm. Ask questions like, tell me more about why you believe you are being bullied. Then ask … Have you told anyone in school? Does anyone else around you know that this incident has taken place? It is very important to immediately notify the school and inform someone at the school,” Dr. Coverson stated.

Mackenzie’s PSA was selected for the All-American High School Film Festival. Her hope is to make it to New York this fall for the screening.

“There are LGBTQ people in school, and you can’t just ignore it,” Romer said.

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