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IDHR dismissal of trans complaint raises questions
by Kate Sosin, Windy City Times
2012-08-29

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In a stunning blow to transgender-rights advocates, the Illinois Department of Human Rights (IDHR) has thrown out a complaint by a transgender woman barred from using the women's restroom at work, despite having state ID indicating she is female.

Meggan Sommerville, a 14-year employee of Hobby Lobby, filed a complaint against her employer last year after the chain admittedly refused her access to the women's room.

The complaint argued that Hobby Lobby violated the Illinois Human Rights Act by denying her full and equal enjoyment of their services.

Sommerville had transitioned from living as male to female at the time and had obtained a driver's license indicating that she is female.

Transgender advocates have long held that the Illinois Human Rights Act, which grants equal access to public accommodations regardless of gender identity or sexual orientation, protected transgender people in public restrooms, especially if they had obtained state IDs indicating their new gender identity.

"IDHR basically showed an absolute ignorance," said Sommerville, noting that the IDHR decision incorrectly refers to her being transgender as a "sexual identity."

According to Sommerville, she remains banned from using the women's room at her Aurora store.

The dismissal confirms that Hobby Lobby personnel instructed Sommerville to use the men's room because she "still possessed his (sic) male anatomy."

A Hobby Lobby spokesperson said the company does not comment on pending legal matters.

In June, IDHR dismissed Sommerville's case for lack of evidence. Sommerville learned of the ruling in late July through Betty Tsamis, a well-known lesbian attorney who had been working on the case (Sommerville said Tsamis is no longer representing her because the two had a disagreement).

According to the IDHR dismissal, the complaint was thrown out because at the time of her conversations with managers on the issue, Sommerville was still in the process of transitioning from male to female. It also says, her "physical anatomy was that of a male," and she had failed to provide her managers with legal precedent that would prove the store was required to let her use the women's room.

The document further notes that Sommerville had previously agreed to use the men's room, a statement that Sommerville contends is false.

Finally, the dismissal references a series of incidents in which Sommerville was accused of sexual harassment for side-hugging, following and making physical contact with a co-worker in 2006. Sommerville was relocated to another Hobby Lobby store over the allegation, but a formal police complaint was never filed. Sommerville denied the allegations of sexual harassment.

Sommerville said she worries for her safety and for the image of the store when she uses a male bathroom shared by customers.

"I look over my shoulder every time I need to use the restroom," she said. She has to wait, she said, until no one is in or around the bathroom before going.

Sommerville's anxieties are not uncommon among transgender people. Transgender women in particular face harassment in large numbers regardless of the gendered bathroom they choose.

Last year, Chrissy Lee Polis—a transgender woman who used a female restroom in a Baltimore, Md., McDonald's—made headlines when she was beaten by two other women while employees filmed the attack.

While Polis was using the women's room at the time, many advocates have argued that trans women face a greater risk of violence in men's rooms.

Sommerville's case could prove significant for other transgender Illinoisans, many of whom use the bathroom that corresponds with their updated IDs, despite not having had genital surgery.

Such surgeries are often costly, are rarely covered by insurance providers and are not always desired by trans people.

Transgender people can change the gender markers on their state IDs and on their U.S. passports without proof of genital surgery.

This year, the American Civil Liberties Union won a court ruling on behalf of three trans people who wanted new Illinois birth certificates but had not undergone genital surgery.

Just one transgender person is known to have won a discrimination case under the Illinois Human Rights Act. Vanessa Fitzsimmons, a taxi driver, successfully sued her former employer for discrimination last year.

"Nobody has tested this [bathroom issue]," Sommerville noted. "This could have been a landmark case."

But despite lack of precedence under the Illinois Human Rights Act, trans advocates have long advised that IDs were more than sufficient proof of the right to use the bathroom marked with their preferred gender.

"This just seems like a slam dunk case of discrimination," said Christina Kahrl, a trans advocate and board member of Equality Illinois. "They are betraying the spirit of the Illinois Human Rights Ordinance."

Kahrl argued that the dismissal sends a message that rights are "economically determined" by who can afford gender-related surgeries and who cannot.

She also worries that the dismissal has set a precedent under which similar cases of alleged discrimination could be thrown out.

"A non-ruling doesn't mean they will rule incorrectly on something in the future, but it does create uncertainty on something that should be absolutely clear," she said.

Kahrl said that Equality Illinois would be taking action on the dismissal, but declined to provide further details. She added that she believes transgender people should continue to use the bathrooms that they have been using.

Equality Illinois was instrumental in the 2005 inclusion of gender identity protections in the Human Rights Act.

Aiding in the effort at that time was Rick Garcia, policy advisor of The Civil Rights Agenda (TCRA), and a longtime LGBT-rights activist. Garcia has worked closely with IDHR for years, he said, even conducting a training on trans issues for IDHR with trans advocate June LaTrobe.

"They have been really good about understanding trans issues," said Garcia. "From what I understand of this case, this was an aberration."

Garcia said he urged Sommerville to ask for a review of the case.

Mike Claffey, a spokesperson for IDHR, said IDHR cannot comment on cases still in the request for review period. "But anybody who is not satisfied with the outcome of their complaint has an avenue of appeal," he said.

Sommerville has until Sept. 24-25 to appeal the two charges listed in her initial complaint. She could also take her case to the circuit court.

Those avenues, however, may not be options for Sommerville. She is behind on rent, she said, and can't afford the cost of an attorney she may need to pursue either route.

Sommerville can likely request a review at IDHR at no cost and without the help of an attorney. If her case makes it past that process, however, she will likely need legal assistance.

Disclosure: This reporter participated in an unrelated educational project around transgender people and restrooms in Illinois that referenced the Illinois Human Rights Act.

First day online coverage appeared Aug. 23, 2012, under the headline: "IDHR dismissal of trans complaint raises questions, by Kate Sosin, Windy City Times


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