The Iowa Supreme Court upheld a jury verdict in favor of a transgender employee assigned a female sex at birth who claimed gender identity discrimination for denying him use of the men’s restrooms and locker rooms. The Court also affirmed the jury’s verdict that the State’s medical plan for employees of the Correctional Institute was unlawful because it denied coverage for gender reassignment surgery which would have otherwise been covered except as a remedy for the transgender employee’s “gender dysphoria”.

The Case is Vroegh v. Iowa Dept of Corrections & Wellmark INC

The Iowa Correctional Institute for Women (“the State’” or “the employer”) employed Jesse Samuel Vroegh (formerly “Jessie Sue Vroegh”) as a registered nurse from 2009-2016. Vroegh was born with female sexual organs and presented as a woman when hired. A few years later, doctors diagnosed Vroegh with gender dysphoria (previously referred to as “gender identity disorder”). Eventually, Vroegh began hormone therapy and in 2014 started living as a man. He also began changing his government identifications (birth certificate, driver’s license, social security card, etc.) to reflect his male gender.

The Law

The Iowa Civil Rights Act prohibits discrimination in employment based on ten specific characteristics, including since 2007, “gender identity”: “age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, and/or disability.” Iowa Code § 216.6(1)(a).

Editor’s Note: Iowa revised its state non-discrimination statute in 2007 to include gender identity. This is relevant as the Court denied Mr. Vroegh’s claims of discrimination on the basis of “sex.” Unlike the U.S. Supreme Court’s Bostock decision (see Thursday’s WIOA story below) in which the Court interpreted “sex” (as used in Title VII of the 1964 Civil Rights Act) to include sexual orientation and gender identity, the Iowa Civil Rights Act specifically defines gender identity as a protected status separate from the protection against sex discrimination. Here is how the Iowa Supreme Court interpreted the Iowa statute prohibiting employment discrimination “based on sex”:

“Sex” doesn’t expand to “gender identity” (or anything other than “sex”) simply because the statute contains an instruction that it be “construed broadly.” We may not through the judicial metamorphosis of words declare a Hulk where the legislature placed merely Bruce Banner. (pg. 24)

Editor’s Note: You just have to love mid-westerners. So down to earth and they also call balls and strikes like a Swiss judge. And what a great common-sense analogy to pick: the transformation of mild-mannered Bruce Banner into the angry Hulk! Marvelous imagery. Intriguing writing. Some may argue with the reasoning, but you just cannot argue with the quality of the writing!

The Bathroom Claim, First, and Then the Medical Plan Coverage Fight

In June 2015, Vroegh requested permission to use the male restrooms and locker rooms at work. Vroegh’s boss said that she would discuss the issue with her supervisors and report back. After no response, in November 2015, Vroegh requested a meeting with his boss, the prison warden, the prison medical director, and the employee union representative. At the meeting, Vroegh again asked permission to use the male restrooms and locker rooms. The warden and medical director believed the use of the male restrooms would be controversial and told him not to use the men’s restroom. As such, Vroegh suggested converting two single-stall gender-specific restrooms (that were in a separate administrative building) to gender-neutral and permitting him to use those unisex restrooms.

Issue #1 Playing to the Crowd Does Not Make Discrimination “Lawful”

Discriminating against one person to benefit others does not offer a justification for the discrimination (i.e., prohibiting African Americans from using a restroom because such use would discomfort some White bathroom users does not make it permissible discrimination; rather it remains unlawful because it is discrimination “based on” race). In the words of the Iowa Supreme Court: “Discriminatory action doesn’t somehow shed its unlawfulness simply because it’s done to placate the real or perceived biases of others.” (pg. 9)

Editor’s Note: This case decision offers a great discrimination law learning opportunity. Why does Iowa’s non-discrimination law (just like Title VII) NOT ALLOW the concerns of co-workers to trump the non-discrimination rights of, in this case, the Transgender employee? After all, the SCOTUS allowed in a 1977 case decision the concerns of TWA maintenance mechanic co-workers of a Mr. Harden to trump his religious accommodation rights which he asserted under Title VII. Mr. Harden was a member of the Worldwide Church of God (Adventists who preach not to work on their sabbath which is Saturday). As a result, once converted to this religion, Mr. Harden refused to work his Friday to Saturday morning shift due to his religious beliefs. Mr. Harden’s co-workers, however, did not like the fact that Harden got out of Saturday work duties they all had to endure because that was the job: their maintenance hangar ran 24/7 and 365 days a year.

What is different? Why did SCOTUS allow the unwanted impact on TWA co-workers to trump Mr. Harden’s assertion of his religious right while the Court in Iowa allowed Mr. Vroegh’s assertion of his Transgender rights claim to trump the concerns of staff at the Iowa State prison? How did Mr. Harden lose his claim while Mr. Vroegh won his? When does a co-worker mob get its way?

Apart from WIR writers Candee Chambers and John Fox discussing this next week in San Diego at the annual meeting of the DirectEmployers Association, we will publish the explanation for this apparent inconsistent reasoning the following week (Monday, April 25th). Meanwhile, those of you who think you know the answer to the conundrum may send us your explanation. Good luck!

Issue #2 “But I Thought You Meant This?”

While the employer (the State) believed it had resolved the issue, Vroegh thought that the unisex bathroom was only a temporary solution. In 2016, the State informed him that the unisex bathroom was the only bathroom he could use (on a permanent basis). Therefore, the State forbade Mr. Vroegh from using the male restroom in the building where he worked.

The Outcome

The Court rejected the employer’s defenses that there was concern about other staff members’ response to a transgender man using the men’s restroom.

“The State’s claim that it acted to protect the concerns of others, without more, is not enough to establish the action was “not a pretext for discrimination.” Woodbury Cnty., 335 N.W.2d at 166 (quoting Loeb, 600 F.2d at 1012 n.6).”

The Court also found that there had NOT been an agreement between the State and the employee to use the unisex restrooms in an adjacent building.

“A factual dispute arose at trial about the time period that Vroegh agreed to use the unisex restrooms in the separate building. Vroegh argued that he agreed to use the unisex restrooms only temporarily; the State argued that Vroegh agreed to use them indefinitely. But this factual dispute is immaterial to our resolution of the larger legal issue here. Regardless of the duration, Vroegh didn’t waive his rights under the Iowa Civil Rights Act by agreeing to use the unisex restrooms.”

The jury awarded Vroegh $100,000 in past emotional distress damages and almost $400,000 in attorney’s fees and costs.

The Gender Reassignment Claim

In 2015, Vroegh sought to have a double mastectomy to align his physical body with his male gender identity. Vroegh’s doctor testified that the procedure, known as gender reassignment surgery, was medically necessary, rather than cosmetic, to relieve the distress that results from gender dysphoria.

The State’s medical insurance plan in 2015 excluded coverage for “[s]exual disorders and gender identity disorders” and also excluded coverage for “gender reassignment surgery.” However, the same mastectomy would have been a covered benefit if employees sought it for a medically necessary reason other than treatment of gender dysphoria.

Issue #3 My Hands Are Tied

The Insurance provider denied Vroegh’s request for coverage based on the exclusions in the plan. The State also argued that because the union had agreed to the exclusion of this coverage from the State’s benefits package, Mr. Vroegh was bound by the agreement and could not now challenge the Plan’s exclusion of insurance coverage for gender reassignment surgery. Mr. Vroegh challenged the denial of this medical coverage in his court complaint. The jury then awarded a verdict that the denial constituted unlawful discrimination based on Mr. Vroegh’s gender identity. The Iowa Supreme Court affirmed the jury award based on the following rationale:

The State’s argument fails. Chapter 20 provides that “[a] provision of a proposed collective bargaining agreement negotiated according to this chapter which conflicts with the Code shall not become a provision of the final collective bargaining agreement . . . .” Id. § 20.28 (emphasis added). (pg. 18)

“The State cites no authority for the proposition that because Vroegh’s union approved insurance coverage as part of a collective bargaining agreement, Vroegh should be deemed to have forfeited claims against the Department (or any other party) under the Iowa Civil Rights Act.” (pg. 18)

The jury awarded $20,000 in past emotional distress damages for the denial of healthcare coverage.

Conclusion

This case decision adds to the ongoing social debate of whether state and federal legislatures should resolve these “collision of rights” cases on behalf of all citizens? Alternatively, should Americans leave these disputes to the courts to fashion decisions from statutes written before the words “gay,” “lesbian,” and “transgender” entered the American consciousness? This Iowa case decision, from America’s heartland, gives the reader a “bird’s-eye view” of the competition of those asserted rights on each side of the tug of war rope.

This was a relatively straightforward case: a mature adult biological woman transitioning to the male gender, earnestly and in good faith, albeit not in the most genteel and refined workplace context, a correctional institute. Consider the more challenging cases coming, such as a biological male teenager with male sex organs still intact, wishing to transition to the female gender with a doctor’s or psychologist’s orders to shower in the girl’s locker room at high school following the daily PE class.

Or consider perhaps the most difficult case: grief-stricken parents of an eight-year-old born, as almost two percent of babies in America are born each year, with BOTH female and male sex organs. Assume that doctors have advised the parents to choose one sex or the other, as is often the case at that age, and subject their child momentarily to a series of expensive and emotionally wrenching transgender reassignment surgeries. And then third parties in the child’s community (churches, political figures, neighbors, near family relations, school administrators, insurance companies, lawyers and the news media) enter this complex, delicate and intimate discussion to seek to stop the parents and their doctors by variously asserting religious, ethical, moral, contract, legal and/or medical objections.

How much would you want to be that Judge, or those parents, or that child? What would you do—from any one of those different perspectives?

Jennifer Polcer
John C. Fox
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