Columnist: Ruling in Hobby Lobby bathroom case could open door for ‘bevy’ of discrimination suits

Last month, an Illinois state appeals court ruled that a bathroom policy instituted by craft retailer Hobby Lobby violated state statutes on anti-discrimination.

Now, Washington Examiner columnist Nicole Russell is warning that the court’s decision and future rulings on the case could upend precedent and change Americans’ understanding of “gender, sex, and anti-discrimination laws” for decades to come.

Writing in an op-ed last week, Russell explained that the case came about when a years-long employee of the chain “transitioned from male to female and lobbied to use Hobby Lobby’s restroom to no avail.”

“Simply no basis”

In its unanimous ruling last month, the Second District Appellate Court in Illinois determined that “Sommerville’s sex is unquestionably female, just like the women who are permitted to use the women’s bathroom,” according to court documents shared by Reason magazine.

The court pointed to Illinois’ discrimination statute, a piece of legislation that “defines ‘sex’ as ‘the status of being male or female.'”

The judges argued that “this definition is broad: it does not draw distinctions based on genitalia, the sex marker used on a birth certificate, or genetic information.”

They also took issue with Hobby Lobby’s contention that “an individual’s ‘sex’ — the status of being male or female — is an immutable condition.”

According to the court, “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.”

“Distinct and distinguishable”

Yet, as Russell pointed out in her piece for the Examiner, “That’s because [the act] was originally passed in 1979, when the terms male and female were distinct and distinguishable.”

The Examiner columnist also argued that the ruling “has incredible implications.”

“By embracing a deceptively simple view of language that feigns ignorance about what the differences between ‘gender identity’ and ‘sex’ really are,” Russell wrote, “this logic eliminates the ability for any person, organization, workplace, or university to have sex-specific sports programs, clubs, or bathroom facilities without fear of a lawsuit crying discrimination.”

Russell lamented that the court’s “ruling will open up society to a bevy of lawsuits and a world in which male and female differences are banished altogether.”

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