Illinois Official Reports

Appellate Court

Hobby Lobby Stores, Inc. v. Sommerville, 2021 IL App (2d) 190362

Appellate Court 

Caption

HOBBY LOBBY STORES, INC., Petitioner, v. MEGGAN 

SOMMERVILLE and THE HUMAN RIGHTS COMMISSION, 

Respondents.

District & No. Second District 

No. 2-19-0362

Filed August 13, 2021

Decision Under 

Review

Petition for review of order of Illinois Human Rights Commission, 

Nos. 2011-CN-2993, 2011-CN-2994.

Judgment Commission decision affirmed and remanded.

Counsel on

Appeal

Whitman H. Brisky and Terry S. Lu, of Mauck & Baker, LLC, of 

Chicago, for petitioner.

Jacob Meister, of Jacob Meister & Associates, of Chicago, for 

respondent Meggan Sommerville.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, 

Solicitor General, and Evan Siegel and Maura Forde O’Meara, 

Assistant Attorney General, of counsel), for other respondent.
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Camilla B. Taylor and Kara N. Ingelhart, of Lambda Legal Defense & 

Education Fund, Inc., of Chicago; Sasha J. Buchert (pro hac vice) and 

Diane Flynn (pro hac vice), of Lambda Legal Defense & Education 

Fund, Inc., of Washington D.C.; Avatara A. Smith-Carrington (pro 

hac vice), of Lambda Legal Defense & Education Fund, Inc., of 

Dallas, Texas; Ethan Rice (pro hac vice), of Lambda Legal Defense & 

Education Fund, Inc., of New York, New York; and Gregory R. 

Nevins (pro hac vice), of Lambda Legal Defense & Education Fund, 

Inc., of Atlanta, Georgia, for amici curiae Lambda Legal Defense & 

Fund, Inc., and Equality Illinois.

John Knight, Ghirlandi Guidetti, Carolyn Wald, Ameri Klafeta, and 

Emily Werth, of Roger Baldwin Foundation of ACLU, Inc., and Terra 

Reynolds, Nicholas J. Siciliano, Renatta A. Gorski, and Edwin D. 

Abundis, of Latham & Watkins, LLP, both of Chicago, for amici 

curiae American Civil Liberties Union of Illinois et al. 

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with 

opinion.

Justices Zenoff and Jorgensen concurred in the judgment and opinion.

OPINION

¶ 1 This appeal raises an issue of first impression in Illinois: whether an employer violates the 

Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2010)) by denying a 

transgender woman the use of the women’s bathroom. The Human Rights Commission

(Commission) found that the petitioner, Hobby Lobby Stores, Inc., violated both article 2 of 

the Act (prohibiting discrimination based on, among other things, gender identity, in the terms 

and conditions of employment) and article 5 (prohibiting such discrimination in the provision 

of facilities in a place of public accommodation). It awarded the respondent, Meggan 

Sommerville, damages and injunctive relief requiring Hobby Lobby to grant Sommerville 

access to the women’s bathroom.

¶ 2 Hobby Lobby appeals, arguing that its policy of regulating bathroom access based upon 

users’ “sex”—which, it contends, means their reproductive organs and structures—does not 

violate the Act. It also argues that the damages awarded were too high.1 We affirm.

1

Hobby Lobby also attempted to raise, through an untimely amendment of its petition for review, 

an argument regarding the professional background of the ALJ who issued the recommended orders in 

this case. However, the amended petition was dismissed for lack of jurisdiction, and that argument is 

not before us.
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¶ 3 I. BACKGROUND

¶ 4 The following facts are drawn from the factual findings of the administrative law judge 

(ALJ), which were adopted by the Commission. Hobby Lobby does not challenge any of these 

factual findings on appeal.

¶ 5 Sommerville, who was born in 1969, was designated as male at birth and given a boy’s 

name. Hobby Lobby hired Sommerville in July 1998. A few years later, Sommerville was 

transferred to Hobby Lobby’s East Aurora store. Sommerville was present at the store as a 

customer as well as an employee. The restrooms at the store, which are used both by employees 

and customers, are designated by sex. It is undisputed that the store is not only Sommerville’s 

workplace but also a “public place of accommodation” under the Act. Hobby Lobby also does 

not dispute that access to a bathroom can be part of the “terms, privileges or conditions of 

employment” covered under the Act. Id. § 2-102(A).

¶ 6 In 2007, Sommerville began transitioning from male to female. In 2009, she disclosed her 

female gender identity to some staff at Hobby Lobby and began medical treatment that resulted 

in female secondary sex characteristics such as breasts and the absence of facial hair. In early 

2010, she began to use her female name and appear at work in feminine dress and makeup, 

without objection from Hobby Lobby. In July 2010, she obtained a court order, legally 

changing her name to Meggan Renee Sommerville, and a new Illinois driver’s license and 

Social Security card, both of which showed her new name and identified her as female.

¶ 7 On July 9, 2010, Sommerville formally informed Hobby Lobby of her transition and her 

intent to begin using the women’s bathroom at the store. Hobby Lobby changed Sommerville’s 

personnel records and benefits information to reflect her female identity. However, Hobby 

Lobby refused to allow Sommerville to use the women’s bathroom at the store. Faced with an 

initial demand that she produce “legal authority” requiring it to allow her to use the women’s 

bathroom, Sommerville provided Hobby Lobby with a variety of documentation including her 

driver’s license, Social Security card, and name change court order; a letter from her medical 

providers identifying her as a female transgender individual, describing the transition process, 

and urging that she be allowed to use the women’s bathroom; and a copy of the Act and similar 

statutes from Iowa and Colorado. However, Hobby Lobby continued to refuse to allow her to 

use the women’s bathroom.

¶ 8 Sommerville occasionally used the women’s bathroom at the store despite Hobby Lobby’s

policy. However, Hobby Lobby assertively enforced its policy, ordering employees to report 

Sommerville if she tried to use the women’s bathroom. On February 23, 2011, she was given 

a written warning for entering the women’s bathroom at the store. Sommerville testified that 

she was “emotionally devastated” by the discipline, and her supervisor testified that she was 

“very upset” and “broke down crying.” In February 2013, she filed complaints with the 

Commission, alleging that she had been discriminated against on the basis of her gender 

identity in violation of articles 2 and 5 of the Act, which cover employment and public 

accommodations.

¶ 9 Over the course of the litigation, Hobby Lobby repeatedly changed its precondition for 

Sommerville’s use of the women’s bathroom, at one point requiring that Sommerville undergo 

surgery and then requiring that she produce a birth certificate reflecting her sex as female. In 

December 2013, Hobby Lobby installed a unisex bathroom at the store. Store employees and 

customers were permitted to use either the bathroom corresponding to their sex or the unisex 

bathroom. However, Hobby Lobby still did not permit Sommerville to use the store’s women’s 
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bathroom. Sommerville testified that, in the face of Hobby Lobby’s continued denial of access 

to the bathroom matching her gender identity, the availability of the unisex bathroom did not 

ameliorate her feeling of being singled out for different treatment because of her transgender 

status. She “felt like [in] some ways they were recognizing me as female, but yet they were 

segregating me. I felt as though there were the guys, the gals, and then me.”

¶ 10 Regarding Sommerville’s damages, the Commission found that Sommerville had suffered 

and continued to suffer emotional distress caused by Hobby Lobby’s denial of access to the 

women’s bathroom at the store. Although Sommerville was permitted to use the men’s 

bathroom at the store, such use caused her anxiety, as she had to engage in “defensive 

maneuvers” before entering, such as checking and waiting to make sure that no one else was 

using the bathroom and attempting to ensure that no one observed her enter, due to her female 

appearance. She was anxious for her safety once she was inside, as “the violence against the 

transgender community is very well documented” and she was afraid of people’s reactions if 

they learned she was there. She also felt embarrassed and humiliated by being a woman in the 

men’s bathroom. If she instead left the store to use the women’s bathroom at a neighboring 

business, she had to consider the number of occasions, length of time needed, and logistics so 

as not to negatively affect her employment duties. Sommerville testified that she “ended up 

having to structure [her] life around how often [she] would be able to use the restroom.”

¶ 11 As a result of Hobby Lobby’s ban on her using the women’s bathroom at work, 

Sommerville was driven to try various ways of coping with her need to use the bathroom. For 

a couple of years, she was able to “hold it” and refrain from using the bathroom until her lunch 

break. In 2012, however, she was diagnosed with a medical condition that led to her needing 

to use the bathroom three or four times each day. She then began limiting her fluid intake and 

not eating breakfast, even when her family was eating. If she left the store to use the bathroom 

at nearby businesses, she had to punch out from her work shift and walk about 10 minutes each 

way, a walk that occurred in foul or fair weather.

¶ 12 Hobby Lobby’s bathroom ban gave Sommerville recurrent nightmares about bathrooms, 

being approached by men, and being physically assaulted and laughed at by them. She also 

developed physical symptoms including headaches, fatigue, muscle cramps, gastric problems, 

and dehydration due to restricting her fluid intake.

¶ 13 After the parties filed cross-motions for summary judgment, the ALJ issued a 

recommended liability determination finding that Hobby Lobby’s bathroom policy 

discriminated against Sommerville on the basis of gender identity, violating articles 2 and 5 of 

the Act. It therefore granted Sommerville’s motion for summary judgment and denied Hobby 

Lobby’s motion. After further proceedings relating to damages, the ALJ awarded Sommerville 

$220,000 in damages for her emotional distress and attorney fees. The Commission adopted 

all of these recommendations in a final order entered April 10, 2019.

¶ 14 Hobby Lobby sought review in this court, and it also sought to stay the damages and 

injunctive relief (primarily, ordering Hobby Lobby to allow Sommerville to use the women’s 

bathroom) awarded by the Commission. The Commission granted Hobby Lobby’s motion to 

stay in part, staying the damages award but denying the stay as to the injunctive relief. Hobby 

Lobby renewed its motion to stay in this court, and on October 30, 2019, we granted that 

motion, thereby staying the injunctive relief as well during the pendency of this appeal. With 

the issuance of this decision, we now lift that stay.
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¶ 15 II. ANALYSIS

¶ 16 In this appeal, Hobby Lobby argues that the Commission erred in finding that it had 

discriminated against Sommerville in violation of the Act by refusing to allow her to use the 

women’s bathroom in the store where she worked and shopped. Hobby Lobby also argues that 

the Commission abused its discretion in awarding damages. Neither contention has merit.

¶ 17 A. Hobby Lobby’s Liability for Discrimination

¶ 18 1. Legal Standards and General Principles

¶ 19 In challenging the Commission’s finding that its bathroom policy violated Sommerville’s 

civil rights, Hobby Lobby argues that the Commission misinterpreted and misapplied the Act. 

As this is a purely legal question of statutory interpretation, our review is de novo. In re 

Appointment of Special Prosecutor, 2019 IL 122949, ¶ 22.

¶ 20 When construing a statute, our task is to “ascertain and give effect to the legislature’s 

intent.” Lieb v. Judges’ Retirement System, 314 Ill. App. 3d 87, 92 (2000). The best indicator 

of the legislature’s intent is the plain language of the statute. Lee v. John Deere Insurance Co., 

208 Ill. 2d 38, 43 (2003). “When the statute’s language is clear, it will be given effect without 

resort to other aids of statutory construction.” Id. “A court may also consider the reason for the 

statute, the problems it seeks to remedy, the purposes to be achieved, and the consequences of 

interpreting the statute one way or another.” Sperl v. Henry, 2018 IL 123132, ¶ 23. “One of the 

fundamental principles of statutory construction is to view all provisions of an enactment as a 

whole,” and thus “words and phrases must be interpreted in light of other relevant provisions 

of the statute.” J.S.A. v. M.H., 224 Ill. 2d 182, 197 (2007). However, we will not depart from 

the plain language of a statute by inserting exceptions, limitations, or conditions that conflict 

with the express legislative intent. In re Michael D., 2015 IL 119178, ¶ 9. With respect to the 

Act in particular, our supreme court has recognized that it is remedial legislation and thus 

“should be construed liberally to achieve its purpose.” Sangamon County Sheriff’s Department 

v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 140 (2009).

¶ 21 2. Did Hobby Lobby Violate the Act?

¶ 22 The Act reflects the public policy of this State. 775 ILCS 5/1-102 (West 2010). One of the 

declared goals of that public policy is “[t]o secure for all individuals within Illinois the freedom 

from discrimination against any individual because of his or her *** sex, *** [or] sexual 

orientation *** in connection with employment *** and the availability of public 

accommodations.” Id. § 1-102(A). Under the Act, it is a civil rights violation for “any employer 

to *** segregate, or to act with respect to *** discipline *** or terms, privileges or conditions 

of employment on the basis of unlawful discrimination” (id. § 2-102(A)) and for any public 

place of accommodation to “[d]eny or refuse to another the full and equal enjoyment of the 

facilities,” based on unlawful discrimination (id. § 5-102(A)). “Unlawful discrimination” is a 

defined term that includes “discrimination against a person because of his or her actual or 

perceived *** sex *** [or] sexual orientation *** as those terms are defined in this Section.” 

Id. § 1-103(Q).

¶ 23 “Sex” is defined in the Act as “the status of being male or female.” Id. § 1-103(O). The 

definition of “sexual orientation” encompasses several aspects of human sexuality, including 
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“gender-related identity, whether or not traditionally associated with the person’s designated 

sex at birth.” Id. § 1-103(O-1).

¶ 24 There is no real dispute that, in this case, Hobby Lobby is barring Sommerville from using 

the women’s bathroom because she is a transgender woman, that is, a woman whose 

“designated sex at birth” was male, instead of a woman who was designated as a female at 

birth. Hobby Lobby’s conduct thus falls squarely within the definition of unlawful 

discrimination under the Act, as it treats Sommerville differently from all other women who 

work or shop at its store, solely on the basis that her gender identity is not “traditionally 

associated with” her “designated sex at birth.” Id. The Commission did not err in finding that 

Hobby Lobby’s conduct of denying Sommerville access to its women’s bathroom violated her 

civil rights under articles 2 and 5 of the Act.

¶ 25 Hobby Lobby argues that the Commission misunderstood the Act, improperly conflating 

“sex” with “sexual orientation.” Specifically, it argues that it limited access to its bathrooms 

based on sex, not gender identity, and that the Act permitted it to do so. It also argues that 

“sex” means “reproductive organs and structures” and thus Sommerville (who has not had a 

surgical vaginoplasty or labiaplasty) is of the male sex. As the proper definition of “sex” under 

the Act lies at the heart of Hobby Lobby’s arguments, we begin there.

¶ 26 As noted, the Act defines “sex” as “the status of being male or female.” Id. § 1-103(O). 

The phrasing of this definition is broad: it does not draw distinctions based on genitalia, the 

sex marker used on a birth certificate, or genetic information. Moreover, it uses the word 

“status.” At law, a “status” is a state of being that may be subject to change. “Marital status” 

is one obvious example of this, as it may change depending on an individual’s actions or 

external events. Similarly, “resident status” (the condition of being a resident of a particular 

area) may change depending on whether one continues to live in that area. See, e.g., Cannici 

v. Village of Melrose Park, 2019 IL App (1st) 181422, ¶ 41 (firefighter who moved his 

principal residence out of village no longer had resident status). Hobby Lobby contends that 

an individual’s “sex”—the status of being male or female—is an immutable condition. 

However, the plain language of the Act does not support this conception. There is simply no 

basis in the Act for treating the “status” of being male or female as eternally fixed.2

¶ 27 Hobby Lobby argues that the Commission improperly conflated “sex” and “gender 

identity,” which “are not synonymous.” We agree that of course these two terms are not 

synonymous; after all, each term is defined separately in the Act. See 775 ILCS 5/1-103(O), 

(O-1) (West 2010). However, neither are these two terms wholly unrelated. To begin with, 

section O-1, the provision referring to gender identity, itself uses the term “sex,” showing that 

the two provisions must be read together. See id. § 1-103(O-1) (“[s]exual orientation” includes 

“gender-related identity, whether or not traditionally associated with the person’s designated 

sex at birth”). Further, by defining “sex” broadly as a status, without any reference to anatomy, 

2

Indeed, it is worth noting that, although Hobby Lobby has advanced a variety of different meanings 

of “female” over the course of this litigation, at different points suggesting that it would allow 

Sommerville to use the women’s bathroom if she could produce a birth certificate with a female sex 

marker or if she underwent genital surgery, none of these scenarios is impossible. Thus, even the 

restrictions on “female” status advanced by Hobby Lobby are things that can be changed. Hobby 

Lobby’s argument that female status is somehow immutable is belied not only by the Act but also by 

its own conduct.
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birth certificates, or genetics, the Act allows for the consideration of gender identity as one of 

the factors that may be used to determine sex.

¶ 28 It has been 15 years since protections against discrimination on the basis of sexual 

orientation, which includes gender identity, were added to the Act. See Pub. Act 93-1078, § 5 

(eff. Jan. 1, 2006) (amending 775 ILCS 5/1-103). In that time, Illinois law has explicitly 

recognized in a variety of ways that gender identity is a primary determinant of a person’s 

“sex” for legal purposes. In Illinois, a transgender person can receive a birth certificate with a 

corrected sex marker upon presenting the vital records division with a declaration by a health 

care professional that the person has received medically appropriate gender transition 

treatment. 410 ILCS 535/17(d) (West 2020). Similarly, a transgender person may apply to 

correct the sex designation on a driver’s license simply by signing an attestation of the person’s 

gender identity. Illinoisans can also mandate the gender identity, expression, and pronouns to 

be used in funeral and burial instructions. 755 ILCS 65/40 (West 2020). All of these provisions 

demonstrate that, under Illinois law, an individual’s gender identity is an accepted basis for 

determining that individual’s legal “sex.” Cf. Bostock v. Clayton County, Georgia, 590 U.S. 

___, ___, 140 S. Ct. 1731, 1741-42 (2020) (under Title VII, discrimination “because of sex” 

encompasses discrimination based on transgender status).

¶ 29 Given the interrelationship between “sex” and gender identity in Illinois law, the record 

establishes that Sommerville’s sex is unquestionably female. She has undergone years of effort 

and expense to transition, and she appears to be and comports herself as a woman. Of even 

greater significance, her status of being female has been recognized not only by the 

governments of this state and the nation but also by Hobby Lobby itself, all of which have 

changed their records to acknowledge her female sex. Given this recognition, Hobby Lobby 

cannot plausibly assert that it is denying Sommerville access to the women’s bathroom on the 

ground that she is not female.

¶ 30 Hobby Lobby contends that, rather than applying the definition of “sex” provided by the 

Act, the Commission should have imported a definition of “sex” found in a dictionary, namely: 

one of two “forms of individuals” that “are distinguished *** especially on the basis of their 

reproductive organs and structures.” See Merriam-Webster Online Dictionary, https://www.

merriam-webster.com/dictionary/sex (last visited Aug. 3, 2021) [https://perma.cc/4RHCZMNK]. Thus, it argues, it could condition access to the women’s bathroom on the possession 

of female “reproductive organs and structures.” However, it is unnecessary to resort to 

dictionary definitions where a statute itself defines a term. Sangamon County Sheriff’s 

Department, 233 Ill. 2d at 137. Here, the Act provides a clear definition of “sex,” eliminating 

any need to look further. Moreover, the Act’s definition of “sex” nowhere includes any 

restriction of that term on the basis of reproductive organs and structures, and we may not 

insert such a limitation into the statute. See id. at 138 (“Where the statutory language is clear, 

we may not read into it limitations that the legislature did not express.”); see also Michael D., 

2015 IL 119178, ¶ 9. Thus, the statutory definition of “sex” cannot be construed to include any 

requirement related to reproductive organs or anatomy. Anatomy may not be irrelevant to the 

determination of an individual’s sex, but under the Act it cannot be the sine qua non. And 

where the State has recognized a transgender person’s sex, the Act affords no basis for an 

employer to reject that recognized sex designation merely because the person’s anatomy does 

not uniformly match that designation.
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¶ 31 3. The Bathroom Exemption

¶ 32 Hobby Lobby next argues that its refusal to allow Sommerville to use the women’s 

bathroom is not discriminatory but is simply a reasonable application of the Act’s “bathroom 

exemption,” which allows the designation of separate bathrooms for men and women. In article 

5, the Act provides that places of public accommodation may restrict access to bathrooms and 

other facilities that are of a “distinctly private” nature on the basis of sex and that such 

restriction is not a civil rights violation. 775 ILCS 5/5-103(B) (West 2010). Thus, Hobby 

Lobby argues, its refusal to allow Sommerville to use the women’s bathroom cannot subject it 

to liability under either article 2 or 5. As a preliminary matter, we note that there is a flaw in 

Hobby Lobby’s reasoning that the bathroom exemption in article 5 (public accommodations) 

also prevents liability under article 2 (employment): the provision explicitly states that it is 

limited to article 5 claims. See id. (“[n]othing in this Article shall apply to” “discrimination 

based on sex” in a facility that is “distinctly private in nature such as restrooms” (emphasis 

added)). Article 2 has its own exemptions provision (see id. § 2-104), which does not mention 

bathrooms. Thus, it is logical to presume that the legislature intended the bathroom exemption 

to apply only in claims under article 5, not those brought under article 2.

¶ 33 Leaving this aside, however, there is a more fundamental problem with Hobby Lobby’s 

argument, which is that it does not excuse Hobby Lobby’s conduct here. As we have noted, 

Sommerville is a transgender woman, and she is classified as female by this State and in Hobby 

Lobby’s own personnel records. Nevertheless, Hobby Lobby denies her the ability to use the 

women’s bathroom, thereby treating her differently than its other female employees and 

customers. This differential treatment cannot be considered to be “discrimination based on 

sex”: Sommerville is female, just like the women who are permitted to use the women’s 

bathroom. The only reason that Sommerville is barred from using the women’s bathroom is 

that she is a transgender woman, unlike the other women (at least, as far as Hobby Lobby 

knows). Thus, the Commission correctly found that Hobby Lobby unlawfully discriminated 

against Sommerville based on her gender identity, that is, because she is transgender. Even as 

to article 5 claims, the bathroom exemption does not excuse discrimination based on gender 

identity. It therefore cannot aid Hobby Lobby here.

¶ 34 Hobby Lobby also argues that the Commission’s application of the Act here effectively 

nullified the bathroom exemption, because the decision implies that employers are not allowed 

to designate bathrooms on the basis of sex. This is simply not so. The Commission’s decision 

in no way can be read as prohibiting employers and businesses in Illinois from maintaining 

separate bathrooms for men and women. Hobby Lobby argues that it was simply acting as a 

reasonable employer and enforcing its rules about separate bathrooms by keeping a male out 

of the women’s bathroom, but Hobby Lobby itself recognizes that Sommerville is female. 

Hobby Lobby’s unlawful discrimination was not designating bathrooms by sex but denying 

Sommerville access to the bathroom that matched her sex. See Grimm v. Gloucester County 

School Board, 972 F.3d 586, 618 (4th Cir. 2020) (existence of bathroom exemption in Title IX 

merely “suggests *** that the act of creating sex-separated restrooms in and of itself is not 

discriminatory—not that, in applying bathroom policies to [transgender persons], the Board 

may rely on its own discriminatory notions of what ‘sex’ means”); Parents for Privacy v. Barr, 

949 F.3d 1210, 1227 (9th Cir. 2020) (“just because Title IX authorizes sex-segregated facilities 

does not mean that they are required, let alone that they must be segregated based only on 

biological sex and cannot accommodate gender identity”); Doe v. Regional School Unit 26, 
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2014 ME 11, ¶ 19, 86 A.3d 600 (school code provision requiring separate bathrooms for girls 

and boys did not purport to dictate the use of those facilities by students: “[a]lthough school 

buildings must *** contain separate bathrooms for each sex, [the school code] does not—and 

school officials cannot—dictate the use of the bathrooms in a way that discriminates against 

students in violation of” the state’s human rights act).

¶ 35 4. Remaining Arguments

¶ 36 Hobby Lobby raises other arguments as well, but none have merit. It argues that we should 

look to legislative history in interpreting the Act, contending that the floor debates on the 2006 

amendment adding sexual orientation and gender identity to the Act show that the legislature 

did not intend the amendment to cover bathroom usage. But, as Hobby Lobby admits, where a 

statute’s language is clear and unambiguous, we must give effect to that language without 

resorting to aids of statutory construction such as legislative history. See Lee, 208 Ill. 2d at 43. 

Here the statute’s meaning is clear, and thus we must simply give effect to it. We also note that 

the legislative history cited by Hobby Lobby does not support its contention, as it never states 

that the Act was not intended to cover bathroom usage. See 93d Ill. Gen. Assem., Senate 

Proceedings, Jan. 10, 2005, at 47-53; 93d Ill. Gen. Assem., House Proceedings, Jan. 11, 2005, 

at 6-24.

¶ 37 Hobby Lobby also objects to the Commission’s characterization of the unisex bathroom as 

similar to the “separate, but equal” approach rejected in Brown v. Board of Education of 

Topeka, 347 U.S. 483, 493 (1954). However, the existence of the unisex bathroom is irrelevant 

to the main issue in this case, which is whether Hobby Lobby violated Sommerville’s civil 

rights in denying her, but not other women, access to the women’s bathroom. Hobby Lobby’s 

provision of a unisex bathroom available to all employees and customers cannot cure its 

unequal treatment of Sommerville with respect to the women’s bathroom. If every employee 

and customer except Sommerville may use either the unisex bathroom or the bathroom 

corresponding to their sex but Sommerville’s choices are limited to the unisex bathroom or a 

bathroom that does not correspond to her sex, Hobby Lobby is still discriminating unlawfully.

¶ 38 Hobby Lobby also argues that the Commission should have looked to Goins v. West Group, 

635 N.W.2d 717 (Minn. 2001), a 20-year-old decision by the Minnesota Supreme Court 

holding that denial of bathroom access to a transgender person did not violate that state’s 

human rights act. But the plain language of the Act (which differs from the statute at issue in 

Goins) must trump reliance on foreign case law. See Sangamon County Sheriff’s Department, 

233 Ill. 2d at 139 (“[o]n the issue of employer liability [under the Act], we are bound by the 

language of the Act, not by decisions” of foreign courts).

¶ 39 Moreover, were we to take note of foreign case law, the single case of Goins would be 

overwhelmed by the tide of federal and state law upholding the right of transgender persons to 

be free from discrimination in employment and in access to bathrooms matching their gender 

identity. See, e.g., Bostock, 590 U.S. at ___, 140 S. Ct. at 1754 (discrimination against 

transgender employees violated Title VII); Grimm, 972 F.3d at 616, 619 (school board’s denial 

of transgender boy’s access to the boys’ bathroom violated his equal protection rights and Title 

IX); Adams v. School Board of St. Johns County, 968 F.3d 1286, 1310-11 (11th Cir. 2020) 

(same); Parents for Privacy, 949 F.3d at 1225 (privacy rights of cisgender students were not 

harmed by school policy allowing transgender students to use the bathrooms corresponding 

with their gender identities); R.M.A. v. Blue Springs R.-IV School District, 568 S.W.3d 420, 
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428-29 (Mo. 2019) (transgender boy who was denied access to the boys’ bathrooms and locker 

rooms stated a claim for discrimination in a public accommodation); Doe v. Boyertown Area 

School District, 897 F.3d 518, 533 (3rd Cir. 2018) (no privacy violation in permitting 

transgender students to use the sex-segregated spaces matching their gender identity; “the 

presence of transgender students in [bathrooms and locker rooms] does not offend the 

constitutional right of privacy any more than the presence of cisgender students”); Whitaker v. 

Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, 1053, 1055 (7th 

Cir. 2017) (upholding injunction against enforcement of school policy restricting bathroom 

access on the basis of the sex marker on students’ birth certificates, noting that “it is unclear 

that the sex marker on a birth certificate can even be used as a true proxy for an individual’s 

biological sex,” as it does not take into account an individual’s genetic makeup or the 

possibility of ambiguous external genitalia); Dodds v. United States Department of Education, 

845 F.3d 217, 221-22 (6th Cir. 2016) (balance of harms and likelihood of success on merits 

supported injunction permitting transgender girl student to use girls’ bathrooms at school); 

Doe, 2014 ME 11, ¶ 19 (barring transgender girl from girls’ bathroom violated her civil rights 

under Maine’s human rights act); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) 

(“discrimination against a transgender individual because of her gender-nonconformity” 

violated equal rights and Title VII, “whether it’s described as being on the basis of sex or 

gender”); Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000) (male 

customer who was denied the opportunity to apply for a loan because he was dressed in 

women’s clothing stated claim of discrimination). In light of the Act’s plain language and the 

wealth of case law supporting the right of transgender persons to use the bathroom 

corresponding to their gender identity, we do not find Goins persuasive.

¶ 40 The final argument raised by Hobby Lobby regarding its bathroom ban—that it was 

necessary to protect other women from Sommerville—lacks support in either the record or 

logic. Hobby Lobby asserts that, in 2006 (before her transition or the events at issue here), 

Sommerville engaged in misconduct toward women that included verbal disparagement and 

unwanted touching of one woman, such as “side-hugging” and touches on the arm, back, and 

leg. It argues that it was therefore justified in barring Sommerville from using the women’s 

bathroom. However, there is no evidence in the record to support Hobby Lobby’s assertion of 

misconduct. Although Hobby Lobby cites a letter issued by its own counsel that contains these 

allegations, it does not point to any substantive evidence in the record such as write-ups or 

other contemporaneous accounts. It is axiomatic that, unless they fall into a narrow class of 

judicial admissions, the statements of counsel are not evidence. Rock Island Metal Foundry, 

Inc. v. City of Rock Island, 414 Ill. 436, 439 (1953). As Hobby Lobby’s assertions lack any 

other support, we must disregard them. See id. Similarly, Hobby Lobby contends that, in 

January or February of 2011, two female employees who had previously known Sommerville 

as a male reported that they would feel “uncomfortable” if Sommerville were to use the 

women’s bathroom. Once again, however, Hobby Lobby does not identify any evidence of 

these supposed objections; the sole record cite is to a motion, and the cites therein do not 

provide evidence of the alleged complaints by coworkers. Thus, Hobby Lobby fails to provide 

any actual evidence showing either that Sommerville engaged in misconduct toward women 

or that female coworkers voiced concerns about Sommerville using the women’s bathroom—

much less that there was any link between the two. There is simply no evidence that 

Sommerville’s use of the women’s bathroom would pose a safety risk to other women.
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¶ 41 Parties must support their arguments in this court with appropriate citations of the record 

and pertinent legal authority. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). The failure to provide 

such support results in forfeiture of the argument. People ex rel. Illinois Department of Labor 

v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56. We have no basis on which to entertain 

Hobby Lobby’s argument that its refusal to allow Sommerville to use the women’s bathroom 

in 2011 was justified by any concern about her based on purported misconduct in 2006.

¶ 42 Moreover, even if there were evidence to support Hobby Lobby’s assertions, its argument 

is illogical and finds no basis in the Act. Employers may of course occasionally find that an 

employee has engaged in misconduct, and that misconduct may justify appropriate discipline 

of the employee. Misconduct cannot justify discrimination, however—an employer cannot 

engage in discrimination against an employee under the guise of “discipline.” These principles 

apply here: if Sommerville engaged in misconduct in 2006, that could justify the imposition of 

prompt disciplinary action. 3 But misconduct in 2006, by itself, could not justify denying 

Sommerville access to the women’s bathroom in 2011. Nor is preventing bathroom access a 

logical or appropriate method of discipline. If Hobby Lobby were employing someone who 

genuinely posed a safety threat to others, its employees and customers would certainly demand 

a more effective safeguard than preventing that person from using the bathroom.

¶ 43 Rather, Hobby Lobby’s argument seeks to give weight to the fears or discomfort of others. 

However, courts have firmly rejected the proposition that such fears or discomfort are an 

adequate justification for a discriminatory policy. The presence of a transgender person in a 

bathroom poses no greater inherent risk to privacy or safety than that posed by anyone else 

who uses the bathroom. See Whitaker, 858 F.3d at 1052. In arguing that Sommerville’s use of 

the women’s bathroom will cause a legitimate intrusion upon privacy, Hobby Lobby “ignores 

the reality of how a transgender [person] uses the bathroom: ‘by entering a stall and closing 

the door.’ ” Grimm, 972 F.3d at 613 (quoting Whitaker, 858 F.3d at 1052). We will not 

prioritize fears or discomfort that have no factual basis in the record. “Private biases may be 

outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” 

Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

¶ 44 B. Damages

¶ 45 Having determined that the Commission correctly found that Hobby Lobby violated the 

Act, we turn to the issue of damages. Hobby Lobby argues that the Commission’s award of 

$220,000 as recompense for the emotional distress endured by Sommerville was excessive for 

several reasons. We do not find its arguments persuasive.

¶ 46 The Act provides for the award of actual damages (775 ILCS 5/8A-104(B) (West 2010)), 

which includes damages for emotional distress (Szkoda v. Human Rights Comm’n, 302 Ill. 

App. 3d 532, 545 (1998)). In a discrimination case, such damages include compensation for 

mental anguish, humiliation, and embarrassment. Id. In awarding damages for emotional 

distress, the Commission must consider the totality of the circumstances, including the nature 

3

Hobby Lobby says it in fact took disciplinary action against Sommerville in 2006, although again 

it does not cite any actual evidence on this point. The evidence that is in the record—that Hobby Lobby 

continued to employ Sommerville and still employs her 15 years later—permits the reasonable 

inference that Hobby Lobby does not view Sommerville’s alleged past misconduct as posing any 

continuing threat to others.
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and duration of the discriminatory treatment and its effect on the complainant. Smith, Ill. Hum. 

Rts. Comm’n No. 1982CF1564, 2005 WL 3452447, at *6 (Oct. 31, 2005) (“The measure of 

damages should be whether the amount of the award is appropriate in light of the nature and 

duration of the suffering experienced by the Complainant.”).

¶ 47 Here, the Commission adopted the ALJ’s finding that Sommerville experienced substantial 

mental and emotional distress from Hobby Lobby’s discriminatory bathroom policy. The 

record contains evidence that Sommerville experienced embarrassment and humiliation daily 

by being singled out for disparate treatment on the basis of her gender identity and being denied 

the ability to use the women’s bathroom. Three to four times a day, she was forced to choose 

whether to endure the shame and anxiety of using the men’s bathroom, risk discipline for using 

the women’s bathroom, or risk neglecting her job duties by leaving her workplace to use the 

women’s bathroom at another business. Her distress drove her to avoid liquid intake, resulting 

in dehydration. The stress also made her subject to bursts of crying, headaches, and nightmares 

regularly.

¶ 48 The Commission found that, by the time of the hearing on damages in February 2016, 

Sommerville had been experiencing this daily emotional distress for over five years. This 

finding of duration was based on the fact that, in July 2010, Sommerville put her employer on 

notice that she should be considered female and accordingly that she intended to use the 

women’s bathroom. We note that this notification was not “out of the blue”: Sommerville first 

began her transition three years earlier, had already developed female characteristics such as 

breasts and the absence of facial hair, and had begun using her female name and adopting 

feminine clothing months earlier. July 2010 is also when she told Hobby Lobby that she wished 

to use the women’s bathroom, and Hobby Lobby denied her permission to do so. Thus, the 

time when the damages began accruing is not in dispute. The ALJ’s recommendation of 

$220,000 in emotional distress damages, which the Commission adopted, was based both on 

the pervasive nature of Sommerville’s daily humiliation and on its duration, which extended 

for years.

¶ 49 Courts will not disturb the amount of damages awarded by the Commission to a successful 

claimant absent an abuse of discretion. Windsor Clothing Store v. Castro, 2015 IL App (1st) 

142999, ¶ 48. To establish an abuse of discretion, Hobby Lobby would have to show that the 

Commission’s award was “arbitrary and capricious,” or that no reasonable person would agree 

with it. Id. (citing Young v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 33). 

“A decision is arbitrary and capricious if it contravenes legislative intent, fails to consider a 

critical aspect of the matter, or offers an explanation so implausible it cannot be considered an 

exercise of the agency’s expertise.” Id. In light of the evidence in the record here, we cannot 

find that the damages award contravened the legislative intent animating the Act or was 

otherwise arbitrary or capricious.

¶ 50 Hobby Lobby offers several arguments, but none of them demonstrate that the award was 

arbitrary or capricious. It first argues that the award, which was the highest amount ever 

awarded by the Commission for emotional distress, is not in line with previous Commission 

decisions. To support its argument, Hobby Lobby cites various Commission decisions and 

argues that Sommerville’s emotional distress was not as severe as the emotional distress 

experienced by the complainants in those cases because, unlike them, Sommerville did not 

receive derogatory comments and, although she feared for her safety, she was not the victim 

of any actual threats or assaults.
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¶ 51 A party cannot show that a damages award was excessive merely by citing other decisions. 

Illinois courts have traditionally declined to compare damages awarded in one case to damages 

awarded in other cases when determining whether a particular award is excessive. Richardson 

v. Chapman, 175 Ill. 2d 98, 114 (1997); see also Holland v. Schwan’s Home Service, Inc., 2013 

IL App (5th) 110560, ¶ 221.

¶ 52 Further, an examination of the cases cited by Hobby Lobby shows that the award here is 

not out of line. For instance, in May, Ill. Hum. Rts. Comm’n No. 2003CF1676, 2009 WL 

6381320 (Nov. 24, 2009), the complainant established that, over the one-year course of her 

employment, her employer spoke in a derogatory fashion about the complainant’s race and 

sex, paid her less than other employees, and failed to promote her. This caused stress that 

resulted in head and chest pain, and she lost weight. Id. at *5. The Commission awarded her 

$50,000 as compensation for her emotional distress. Id. at *9. The complainant in May

experienced a year of discriminatory treatment from her employer. By comparison, 

Sommerville experienced over five years of daily discriminatory treatment by Hobby Lobby. 

If we were to compare cases, the much greater duration of the discriminatory treatment here 

could justify a damages award five times greater than in May, i.e., $250,000. The damages 

award here is less than that. Other cases similarly confirm that the award here is not excessive 

when the duration of the discrimination is taken into account. See, e.g., Michael S., Ill. Hum. 

Rts. Comm’n No. 2015CP3418, 2019 WL 7494510, at *13-14 (Sept. 11, 2019) (awarding 

$55,000 in emotional distress damages to transgender boy student denied access to boys’ 

bathrooms and locker rooms for approximately four months); Windsor, 2015 IL App (1st) 

142999 (complainant awarded emotional distress damages of $25,000 for a single incident of 

discrimination lasting 30 minutes that, as here, did not involve derogatory comments, threats, 

or assault); cf. Joshua F. Bowers, EEOC Awards of Emotional Distress Damages Exceeding 

$100,000, ALI-ABA Committee on Continuing Professional Education, Current 

Developments in Employment Law: The Obama Years at Mid-Term (July 28-30, 2011) 

(documenting emotional distress damages awards under Title VII of more than $200,000 in 

cases with comparable facts). For all of these reasons, we reject Hobby Lobby’s argument 

based on comparison to other cases.

¶ 53 Hobby Lobby next argues that “the Commission failed to address causation,” but this 

argument simply misstates the record. The Commission explicitly found that Sommerville’s 

emotional distress was caused by Hobby Lobby’s actions in denying her access to the women’s 

bathroom at her workplace. Hobby Lobby then posits that Sommerville failed to show that its 

discriminatory treatment of her was the cause of her emotional distress. Again, this contention 

is refuted by the record. Sommerville testified amply about the direct emotional and physical 

repercussions of confronting daily the fact that Hobby Lobby would not let her use the same 

women’s bathroom used by all other women employees and customers, and the ALJ found 

Sommerville’s testimony credible. In light of the ample evidence in the record, the 

Commission did not abuse its discretion in finding that Sommerville’s emotional distress was 

caused by Hobby Lobby’s discriminatory treatment of her. See MIFAB, Inc. v. Illinois Human 

Rights Comm’n, 2020 IL App (1st) 181098, ¶ 76 (where evidence presented at damages 

hearing supported the Commission’s award of emotional distress damages, reviewing court 

could not say that the Commission abused its discretion in that award).

¶ 54 Hobby Lobby’s next argument is even more strongly contradicted by the record. Hobby 

Lobby disingenuously argues that the ALJ unfairly denied it the opportunity to present the 
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testimony of Annalee Miller, a human resources employee, at the damages hearing, but this 

simply is not so. The record discloses that Hobby Lobby never sought to call Miller to testify 

at the hearing. Rather, Sommerville initially placed Miller on her witness list for the hearing, 

and Hobby Lobby objected to her being called as a witness, asserting that she had no relevant 

or admissible evidence to offer. Accepting Hobby Lobby’s assertion, the ALJ precluded 

Sommerville from presenting Miller’s testimony. Because of this assertion, at the damages 

hearing when Hobby Lobby asked to make an “offer of proof” as to Miller’s testimony if she 

had been called, the trial court denied Hobby Lobby’s request.

¶ 55 The ALJ’s refusal to entertain this unfair attempt by Hobby Lobby to make a record as to 

testimony that Hobby Lobby itself prevented Sommerville from obtaining was entirely proper. 

Hobby Lobby’s assertion that Miller had no relevant or admissible testimony to offer estopped 

it from later arguing that it should be permitted to make an offer of proof as to that testimony. 

Hobby Lobby’s further attempt to raise this issue on appeal is also barred. Where a party argues 

that a trial court should take a particular approach and the court adopts that position, the party 

cannot subsequently complain about the court’s action. Gaffney v. Board of Trustees of the 

Orland Fire Protection District, 2012 IL 10012, ¶ 33; In re Detention of Swope, 213 Ill. 2d 

210, 217 (2004).

¶ 56 Hobby Lobby next argues that the Commission itself recognized that the emotional distress 

damages award was excessive, because the Commission remanded the ALJ’s initial 

recommendation for further factual findings supporting the award. Once again, however, the 

record fails to support this contention. Although the Commission did remand on the issue of 

the damages award, it expressed no disapproval of the $220,000 amount recommended; rather, 

the Commission simply found that the factual findings were insufficient. Upon remand, the 

ALJ issued a supplemental recommendation in the same amount, containing a lengthy and 

detailed presentation of the evidence on damages and additional factual findings. After 

consideration of the exceptions filed by both parties, the Commission adopted the ALJ’s 

recommendation. This sequence of events does not support the contention that the Commission 

itself believed the award to be excessive, given that it ultimately adopted that very award.

¶ 57 Hobby Lobby’s final contention on the issue of damages is that it should not be “punished” 

by a large damages award for several reasons, including that it acted in good faith by 

interpreting the Act as permitting it to deny Sommerville access to the women’s bathroom, that 

the issue was one of first impression in Illinois, that it thinks the statute is internally 

inconsistent, and that it faced “a difficult balancing” of Sommerville’s needs and the “interests” 

of other employees. However, Hobby Lobby offers no legal authority suggesting that any of 

these are appropriate bases on which to reduce a damages award. (Indeed, some of its 

arguments are contradicted by applicable law. See, e.g., Raintree Health Care Center v. Illinois 

Human Rights Comm’n, 173 Ill. 2d 469, 490 (1996) (there is no good-faith exemption to the 

Act).) Thus, we find these arguments forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); 

E.R.H. Enterprises, 2013 IL 115106, ¶ 56. Even if these arguments were not forfeited, 

however, the award here is compensatory, not punitive. The amount of the award is not based 

on some desire to punish Hobby Lobby but on the Commission’s determination that 

Sommerville suffered substantial injury as a result of Hobby Lobby’s continuing 

discriminatory treatment of her. The Commission did not abuse its discretion in its award of 

damages.
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¶ 58 Before we leave the issue of damages, we note that Sommerville asks that, if we affirm the 

Commission’s decision, we remand this case to the Commission for a determination of any 

additional damages and attorney fees that may be due. This approach is supported by the law, 

which allows complainants to seek additional damages for continuing violations. See ISS 

International Service System, Inc. v. Illinois Human Rights Comm’n, 272 Ill. App. 3d 969, 980-

81 (1995) (section 8A-104(B) of the Act “requires the payment of actual damages for a 

complainant’s injury [citation], and therefore the Commission would not be providing

complete relief to complainants if it [did] not award additional damages warranted by” the 

continuing effects of discriminatory treatment). Accordingly, we enter such a remand.

¶ 59 III. CONCLUSION

¶ 60 For the reasons stated herein, we affirm the decision of the Commission and remand for 

further proceedings consistent with this opinion. Our October 30, 2019, stay is hereby vacated.

¶ 61 Commission decision affirmed and remanded.