Trial News

The Iowa Supreme Court upheld a verdict for a transgender nurse who alleged his former employer, the state’s Department of Corrections (DOC), discriminated against him by banning him from using the locker room and restroom that aligned with his gender identity and denying him coverage for gender-affirming surgery. ACLU of Iowa believes the case to be the first transgender employment discrimination lawsuit filed in the state since the Iowa Civil Rights Act was amended in 2007 to add specific protections for transgender individuals. (Vroegh v. Iowa Dep’t of Corr., 2022 WL 981824 (Iowa Apr. 1, 2022).)

Registered nurse Jesse Vroegh worked at the Iowa DOC’s Correctional Institution for Women from 2009 to 2016. Vroegh identified as female when he was hired but was diagnosed with gender dysphoria a few years later. By 2014, Vroegh was undergoing hormone therapy, living publicly as a man, and had changed his government-issued identification—including his birth certificate, driver’s license, Social Security card, and nursing license—to reflect his male gender and new name. He notified his DOC supervisor that he was transitioning in October 2014.

In June 2015, and again in November 2015, Vroegh requested to use the male bathrooms and locker rooms at work. Prison warden Patti Wachtendorf and prison medical director Harbans Deol felt this would be controversial but were open to Vroegh’s suggestion that they convert two single-stall bathrooms in a separate administrative building to unisex bathrooms. Although Vroegh meant this to be a temporary solution, in April 2016, he learned that it was to be a permanent solution.

Vroegh also sought coverage under Iowa’s employee health benefit plan, administered by Wellmark, for a double mastectomy in 2015 to align his body to his male gender identity. The plan, however, excluded coverage for “sexual disorders and gender identity disorders,” including “gender reassignment surgery.”

In 2017, after being terminated for unrelated reasons, Vroegh filed claims against the DOC and Wachtendorf, the Iowa Department of Administrative Services (DAS), and Wellmark, alleging sex and gender identity discrimination. The lower court dismissed the claims against Wellmark, finding it was the plan administrator but ultimately did not have authority over the health plan’s scope of coverage. A jury found for Vroegh on his sex and gender identity claims against the DOC and Wachtendorf as well as the DAS—awarding him $120,000 in past emotional distress damages and attorney fees, as required for plaintiffs who prevail in their claims under the Iowa Civil Rights Act.

The DOC and DAS appealed, and the Iowa Supreme Court upheld the full damages awarded to Vroegh. It disagreed, however, with the lower court’s denial of the defendants’ motion for judgment notwithstanding the verdict on Vroegh’s sex discrimination claims.

The Iowa Civil Rights Act prohibits employment discrimination based on various factors, including sex and gender identity. (Iowa Code §216.6(1)(a).) It does not define “sex,” but the Iowa Supreme Court, in Sommers v. Iowa Civil Rights Commission, addressed whether sex discrimination under the act includes discrimination based on an individual’s transgender status. (337 N.W.2d 470 (Iowa 1983).) In Sommers, the state high court distinguished “sex” from “gender” and found that the legislature’s purpose in adding protection on the basis of sex was “to place women on an equal footing with men in the workplace” and not to prevent discrimination against transgender individuals. Over two decades after Sommers was decided, in 2007, the legislature amended the act to add protections for “gender identity.”

In considering Vroegh’s claims, the Iowa Supreme Court noted that Sommers was a case of first and last impression in Iowa on whether sex discrimination protections cover discrimination based on transgender status. Vroegh argued that Sommers was superseded by the U.S. Supreme Court’s decision in Bostock v. Clayton County, where it reasoned that firing a transgender employee who was born male but now identifies as female but retaining other employees who were born female and identify as female does constitute discrimination “because of sex.” (140 S. Ct. 1731 (2020).)

The Iowa Supreme Court said that though a federal court’s interpretation of similar statutory language is persuasive, Iowa’s courts ultimately “have interpretive authority over Iowa’s statutes.” It found that the state legislature, in amending the Iowa Civil Rights Act in 2007, added gender identity as a separate characteristic rather than subsuming it within the term “sex.” Because of this, the court declined to adopt the U.S. Supreme Court’s interpretation of sex in Bostock, “particularly considering that the Iowa Civil Rights Act provides separate protections based on gender identity.”

The court, however, upheld the full damages the jury awarded to Vroegh. During deliberations, the court noted, jurors had expressed confusion about the distinction between the terms “sex” and “gender identity” in the jury instructions. Although the lower court’s response was somewhat “confusing” and “circular,” the state high court said, it resulted in the jurors basing their full award on “the emotional distress Vroegh suffered from gender identity discrimination, not sex discrimination”—therefore the amount of damages “should not be disturbed.”

ACLU of Iowa Legal Director Rita Bettis Austen called the decision “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 added that “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 co-workers.”

Des Moines attorney Melissa Hasso, who also represented Vroegh, called the ruling “a very important step forward for our transgender friends, relatives, and co-workers in their efforts to live productive and rewarding lives.”