Siding With Transgender Employee, Iowa Supreme Court Sidesteps Bostock

Last week, the Iowa Supreme Court upheld a 2019 jury verdict that found the state discriminated against a transgender state prison employee by denying him the use of men’s restrooms and locker rooms at his workplace.

The ruling means former Iowa state prison nurse Jesse Vroegh, a former Iowa Department of Corrections (DOC) nurse, won his discrimination suit based on gender identity and the damages verdict, but, and this is the interesting part, the court dismissed the sex discrimination claim.

I found this confusing. Why?

Well, according to the landmark U.S. Supreme Court decision, Bostock v. Clayton County, “an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Discrimination based on sexual orientation or transgender status violates Title VII of the Civil Rights Act of 1964 (Title VII), the federal anti-discrimination statute, even if the employee’s sexual orientation or gender identity was only part of the reason for an adverse action. 

Man, Portrait, Person, Asian, Young, Taiwan, Minister

However, the Iowa court specifically rejected that principle, and, instead, found that the DOC violated only the Iowa Human Rights Act, which prohibits discrimination based on gender identity yet does not define “sex.”

Makes me wonder whether the states will chip away at Bostock—bit by bit.

What Are The Facts?

Back in 2009, the Iowa DOC hired a female registered nurse, Jesse Vroegh.

A few years later, doctors diagnosed Jesse with gender dysphoria, defined as “the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.”

Vroegh began to transition from female to male. By 2014, he presented himself publicly as a man, and, after hormone therapy, appeared as a man.

The pushback at work came when he asked to use the men’s locker room and restrooms.

Instead, the DOC created a single unit stall in another building, and a year later, the DOC terminated Vroegh and he sued alleging sex discrimination and gender identity discrimination for denying him use of the men’s restrooms and locker rooms.

The Iowa Supreme Court Ruling

In a 61-page decision, the Iowa court first explained that it recognized gender identity discrimination for transgender workers under the state civil rights law, Iowa Civil Rights Act in 2007.

The Iowa Civil Rights Act (the Act) prohibits discrimination in employment based on sex, sexual orientation, and gender identity, among others, and contains no definition of “sex.”

However, the court noted, the Act does define “gender identity,” and so the question for the court was whether discrimination on the basis of “sex” includes discrimination based on a person’s transgender status.

Vroegh argued that it did, i.e., that “gender identity” is subsumed within the meaning “sex.” The DOC argued the opposite.

I thought SCOTUS settled this matter in 2020 in Bostock. There, the highest court in the country ruled in the affirmative, stating “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Iowa court said: not so much.

Instead, the court relied on a 1983 Iowa Supreme Court case, “a case of first, and last, impression in Iowa.” This case is the first transgender employment discrimination lawsuit filed in Iowa since the Act made discrimination on the basis of gender identity unlawful in 2007.

One would think that the 1983 case had been abrogated by Bostock, but the court did not find it so.

In Bostock, the majority determined that an employer who “fires a transgender person who was identified as a male at birth but who now identifies as a female” but “retains an otherwise identical employee who was identified as female at birth” thus “intentionally discriminates against that individual in part because of sex.” Id. at 1744.

The Iowa court disagreed with Vroegh and Bostock. The Iowa court disagreed, relying on a textual interpretation of the Act, which did not define “sex,” though it did include and define “gender identity.”

The court said,

Discrimination based on an individual’s gender identity does not equate to discrimination based on the individual’s male or female anatomical characteristics at the time of birth (the definition of `sex’). An employer could discriminate against transgender individuals without even knowing the sex of the individuals adversely affected.

Then, in my favorite quote, rejecting the expansion of the definition of the word “sex,” the court ruled:

‘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.

Incredible Hulk, Superhero, Green

The Vroegh case seems to reject the main holding of Bostock: an employer who fires or takes an adverse action against an individual merely for being gay or transgender violates Title VII’s prohibition of discrimination based on sex. Discrimination based on a person’s sexual orientation or transgender status constitutes sex discrimination, even if that was only part of the reason for an adverse action.

The court upheld the verdict in the employee’s favor anyway, based on the Act.

And, hey, Mr. Vroegh is certainly happy—his damages verdict was upheld.

Employer Takeaway

The takeaway for employers is this: do not discriminate against transgender employees.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.