DES MOINES, Iowa – On Friday, the Iowa Supreme Court unanimously upheld a Polk County jury’s verdict in a discrimination lawsuit filed against the Iowa Department of Corrections (DOC) and Iowa Department of Administrative Services (DAS).
The Iowa Legislature in 2007 amended the Iowa Civil Rights Act to include “sexual orientation” and “gender identity” as protected classes, and Vroegh’s case was the first one brought to a jury after the change in the law.
The plaintiff, Jesse Vroegh, who identifies as a transgender male, worked as a nurse at the Iowa Correctional Institute for Women in Mitchelville from 2009 to 2016.
Vroegh, a biological female, started working for the DOC as Jessie Sue Vroegh, later legally changed to Jesse Samuel Vroegh, after being diagnosed with having gender dysphoria.
Vroegh began hormone therapy and started publicly living as a transgender man in 2014 and asked for accommodations at work, including the ability to use the men’s restroom and locker room. Vroegh also requested that the state’s medical insurance, provided through Wellmark, pay for a double mastectomy as part of Vroegh’s treatment for gender dysphoria.
The Iowa Correctional Institute for Women (ICIW) transitioned single-use restrooms in its administration building to unisex. Vroegh believed that was a temporary change. However, Vroegh’s supervisors at the prison thought that was a permanent solution.
Vroegh’s request for the state’s medical insurance to pay for the double mastectomy was also denied since the state viewed the surgery as cosmetic, not a medical necessity. “Gender reassignment surgery” was excluded from the state’s insurance plan.
Vroegh’s employment was terminated in 2016 after an allegation that Vroegh gave confidential information about an inmate to a third party. The termination was upheld in arbitration and was not challenged in district court as part of a later lawsuit.
Vroegh filed a lawsuit in 2017 claiming discrimination based on sex and gender identity. A jury found in favor of Vroegh on both the sex and gender identity discrimination claims, awarding Vroegh $100,000 in past emotional distress damages from DOC and $20,000 from DAS. They also granted Vroegh $348,227.24 in attorney’s fees.
The district court judge dismissed a lawsuit Vroegh filed against Wellmark.
The state of Iowa, represented by the Attorney General’s office, appealed both verdicts, and Vroegh cross-appealed the district court’s summary judgment dismissal. Vroegh was represented by attorneys from the ACLU of Iowa.
The Iowa Supreme Court heard oral arguments on September 21, 2021.
The Iowa Supreme Court ruled in favor of affirming the jury verdict related to the gender identity discrimination complaint. They stated that the state failed to argue that there were nondiscriminatory reasons for denying Vroegh access to the men’s facilities and denying payment for the surgery.
Justice Matthew McDermott, appointed to the Iowa Supreme Court by Gov. Kim Reynolds in 2020, wrote the court’s opinion.
“A claim that an employment decision was intended to pacify other coworkers, or was made with the acquiescence of the employee, doesn’t answer whether the state’s motivation was nondiscriminatory. The state’s explanation doesn’t supply a legitimate, nondiscriminatory reason,” McDermott wrote.
The court rejected the state’s arguments opposing Polk County District Court Judge Scott Rosenberg’s jury instructions, disallowing evidence of Vroegh’s termination, Vroegh’s motivation for bringing the lawsuit, and the wage discrimination claim against DAS.
“The State doesn’t contest the district court’s instruction to the jury on gender identity discrimination,” McDermott added.
The Iowa Supreme Court did find for the state in their appeal against the district court’s jury instructions and verdict regarding the sex discrimination complaint. However, they reversed that verdict but kept the jury awards the same. Justice Brent Appel, appointed to the Iowa Supreme Court in 2006 by former Governor Tom Vilsack, dissented from the court’s decision to overturn the sex discrimination verdict.
They rejected the ACLU’s argument and Supreme Court’s reasoning in Bostock v. Clayton County, Georgia, that gender identity fell under sex as a protected class.
McDermott pointed to a 1983 Iowa Supreme Court ruling in Sommers v. Iowa Civil Rights Commission.
“We rejected Sommers’s argument that the statute’s use of ‘sex,’ rather than ‘male or female sex,’ left open an interpretation that the term could refer to transgender individuals,” he wrote.
“We stated that the legislative purpose in adding protection on the basis of sex was ‘to place women on an equal footing with men in the workplace,’ not to forbid discrimination against transgender people,” McDermott later wrote. “Our opinion underscored the legislature’s omission of any express protection for transgender people as a class, and cautioned that ‘it is for the legislature by statute and not for this court by judicial fiat to provide relief.'”
Writing for the majority, McDermott notes Bostock generally accepted the same definition of “sex” in its interpretation of Title VII that the Iowa Supreme Court applied in their 1983 decision in Sommers, but the Supreme Court applied the definition in a manner they rejected.
He cited U.S. Associate Justice Samuel Alito’s dissent in the Bostock case, “(T)he majority ‘loads the dice’ by ignoring the possibility that the sole motivation for the employer’s decision may well be the employee’s transgender status (a permitted motivation under Title VII) and not the employee’s sex.”
“We look to the federal courts’ interpretations of similar constitutional and statutory language as persuasive authority, but we aren’t bound by them. Iowa’s courts have interpretive authority over Iowa’s statutes. And particularly with statutes in which the text in the state and federal versions differs in critical ways, as here, federal court interpretations carry even less persuasive value,” McDermott wrote.
“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’),” he added. “We see no reason to jettison the interpretive analysis in Sommers construing ‘sex’ according to its common usage… particularly considering that the Iowa Civil Rights Act provides separate protections based on gender identity.”
The ACLU representing Vroegh argued that “sex” should be construed broadly because the Iowa Civil Rights Act instructs that the law be “be construed broadly to effectuate its purposes.”
The Iowa Supreme Court rejected that argument.
“Such a provision doesn’t allow courts to ignore the ordinary meaning of words in a statute and to expand or contract their meaning to favor one side in a dispute over another,” McDermott wrote.” ‘Sex’ doesn’t expand to ‘gender identity’ (or anything other than ‘sex’) simply because the statute contains an instruction that it be ‘construed broadly.'”
The Iowa Supreme Court also denied Vroegh’s cross-appeal in the lawsuit against Wellmark, upholding the dismissal of that case.
Vroegh praised the ruling.
“This day has been a long time coming. I am so happy that my state supreme court has recognized that transgender people like me should be treated just the same as everyone else when it comes to medical care—that if a doctor says I should receive medical treatment, I get the treatment,” Vroegh said in a released statement.
Rita Bettis Austen, ACLU of Iowa Legal Director, called the ruling historic.
“This is a historic victory for civil rights in Iowa, because it makes real the promise of nondiscrimination protections in employment that our legislature put in place for transgender Iowans in 2007,” she said.
“The state should have been a model for other employers in its treatment of a transgender worker, but instead blatantly discriminated against Jesse, who only ever asked to be treated the same as his coworkers,” Bettis Austen added.
DOC spokesman Nick Crawford told The Iowa Torch that since 2016, the department had made personnel and policy changes.
“The investigation and complaint on this matter took place under a prior director and warden at ICIW. Since then, a new department director and warden have taken their place. The DOC does everything it can to create a safe and accommodating environment for all its employees,” he said.
Read the entire majority opinion and dissenting opinion below:
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