Transgender activist Meggan Sommerville has been given the go-ahead to announce a significant step forward in her five-year-long battle against Hobby Lobby to be allowed the basic dignity of being able to use the restroom that matches her gender at her Aurora, Illinois, place of employment.
A May 15 ruling in the case by State of Illinois Human Right Commission Administrative Law Judge William J. Borah was in favor of Sommerville.
Due to the ongoing litigation, she had kept the decision under wraps but, on Oct. 3, granted Windy City Times permission to publish Borah's decision, which included several key statements regarding Hobby Lobby's violation of the Illinois Human Rights Act.
Even though she has retained the job at Hobby Lobby that she has held for 17 years, since she began living in her true identity in 2010, Sommervillewho suffers from fibromyalgia, the symptoms of which include an increased need to use the restroomwas forced into either waiting up to six hours for a lunch break in order to use the restroom at a nearby fast-food restaurant or using the male restroom at the store.
"I had to go covertly," Sommerville told Windy City Times in a 2014 interview. "If there was somebody in there, I would have to wait. The last thing I wanted was a compliant, or to make a scene, or worse yet, for somebody to be hostile."
Sommerville's bosses made it clear to her that she was not to use the female restroom either as an employee or as a customer. When she tried to use that facility off the clock, she was written up. "They don't care whether I'm a customer or not," she said. "I am not allowed to use the women's restroom period."
Sommerville's 2012 complaint filed with the Illinois Department of Human Rights (IDHR) was dismissed. Her case was subsequently taken on by attorneys Katherine Eder and Jacob Meister of the Chicago-based firm Jacob Meister & Associates.
In his decision, Borah noted Hobby Lobby's "concern about a woman employee expressing 'discomfort' with [Sommerville] being present in the women's restroom."
"However, a co-worker's discomfort cannot justify discriminatory terms and conditions of employment," Borah wrote.
He added that Hobby Lobby's 2014 construction of "a 'unisex' single use restroom for [Sommerville] only segregates her and perpetuates different treatment contrary to the [Illinois Human Rights] Act."
Borah also stated that that "nothing in the Act makes any surgical procedure a prerequisite for its protection of sexual related identity. Therefore [Hobby Lobby's] unilateral surgical requirement is untenable."
"For me, it is a cautionary win," Sommerville told Windy City Times. "It's a huge victory, don't get me wrong. The judge's comments are profoundly clear when it comes to discrimination of the individual. I cannot see how anybody can argue with his decision."
Despite that decision, Hobby Lobby is still enforcing its policy.
"The reality is nothing has changed," Sommerville said. "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."
Living for five years under those restrictions has already taken a heavy toll on Sommerville, who refuses to be forced out of a job she otherwise loves to do as an asset to the company reflected by her overwhelming popularity with Hobby Lobby's customers.
Sommerville said attending the Sept. 17-18 hearings to assess damages was emotionally and mentally devastating. "The physical effect this has all had on me has already led to very raw wounds," she noted, struggling to hold back tears. "I knew going in they were going to be two of the worst days of my life. To have my integrity called into question [during cross examination] was difficult. Then to sit there and be talked about in the third person. When we broke for lunch on the 17th, there was nothing more I thought I could do but just cry. My parents were there and testified. It was the one thing that got me throughthat I held onto during the whole process. How many people can say that their parents' love is now part of the public record?"
Yet, Sommerville's fight is far from over.
Eder told Windy City Times that Borah's order was only a recommended ruling. "It does have to go before the Human Rights Commission," she said. "Now we've had the hearing on damages, the judge has asked for briefs. He will then incorporate damages into his determination. After that, either party can file disagreements with the judge's order with the commission which can then decide by a three-member panel, whether they are going to hear [them]. If they decide not to, then the ruling will become final."
She added that, given the high standard Borah has set for the commission to dissent, "we're pretty confident that the commission will agree with the judge's ruling."
According to Eder, the ruling sets a precedent. "Practically speaking, I think this is guidance and a clear statement for all Illinois employers," she said. "We feel like the Illinois Human Rights Act is very clear, and Meggan should have been able to use the women's restroom from day one."
"I don't think anything will change until we have a final decision," Sommerville said. "I'm not going to speculate on what the future is going to hold between me and Hobby Lobby. Do I want to continue doing what I do? Yes. I enjoy it. Why should I quit? 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. No one should be forced to quit where they're being harassed and discriminated against. This case is bigger than me. It will have ripple effects across the country."
Read decision at the link: www.windycitymediagroup.com/pdf/Sommervilleruling.pdf .