Transgender former nurse wins discrimination case against state at Iowa Supreme Court

The Iowa Supreme Court on Friday upheld a $120,000 jury award in favor of a transgender former employee who sued the Iowa Department of Corrections for sex and gender discrimination.

"This day has been a long time coming," Jesse Vroegh, who first filed suit in 2017, said in a video statement after the ruling. "I am so happy that my state Supreme Court has recognized that transgender people like me should be treated the same as everyone else."

Vroegh, a nurse at the Iowa Correctional Institution for Women in Mitchellville from 2009 to 2016, transitioned from female to male in 2014 and asked for permission to use the men's restrooms and locker rooms. Instead he was told to use a single-stall, unisex bathroom in a different building. The department also denied him insurance coverage for gender transition-related surgery.

In 2017, after Vroegh was fired for unrelated reasons, he sued the state over the bathroom issue, and in 2019, he won his case.

Friday's opinion partially upholds that verdict. Justice Matthew McDermott, joined by five other justices, wrote that the district court should have dismissed Vroegh's sex discrimination claim for lack of evidence, but affirmed the jury's finding he had been the victim of gender discrimination and the full amount of damages it awarded.

A spokesman for the Department of Corrections responded to the decision by stressing recent leadership changes in the department.

"The investigation and complaint on this matter took place under a prior director and warden at" the Iowa Correctional Institution for Women, Communications Director Nick Crawford said in an emailed statement. "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."

Previously: Iowa seeks to overturn discrimination verdict involving former transgender employee's access to bathrooms

In his statement, Vroegh, who was represented by the America Civil Liberties Union of Iowa, thanked the court for its ruling and said, "I'm doing this so that other transgender people don't have to go through what I have."

"As a nurse I see on regular basis how important it is for people to be treated equally when receiving medical care," he said. "It is important for all people to be treated with dignity and respect.”

Court finds discrimination over gender, not sex

Both sex and gender discrimination are banned by the Iowa Civil Rights Act, but the state argued on appeal that Vroegh was entitled only to bring claims of gender discrimination before the jury. On this issue, McDermott sided with the state.

State law distinguishes between sex, which describes physical anatomy, and gender, which encompasses behavior and feelings about oneself. A 1981 Supreme Court decision found that the bar against sex discrimination did not cover discrimination against transgender individuals. The Iowa Civil Rights Act was later amended to add gender as a separate impermissible grounds for discrimination.

The district court allowed Vroegh to present both arguments based on a 2020 U.S. Supreme Court decision, which found that sex discrimination by definition encompasses gender discrimination. McDermott wrote that, in applying Iowa law, the Iowa precedent still holds, and affirmed that for purposes of the Iowa Civil Rights Act, discrimination based on gender identity does not automatically equate to discrimination based on sex.

Despite that finding, the Supreme Court didn't overturn the jury's award of damages to Vroegh or the nearly $350,000 award of attorney fees to his lawyers with the ACLU.

"In light of the evidence presented, the jury’s question during deliberations, the court’s response to the question, and the jury’s verdicts, we’re left with the conclusion that the jury based its award on the emotional distress that Vroegh suffered from gender identity discrimination, not sex discrimination," McDermott wrote.

In a news conference Friday, ACLU Legal Director Rita Bettis Austen said the ruling means Iowans have protections under Iowa law at least as strong as those under the federal nondiscrimination law Title VII, although the different laws define those protections differently.

"I think the practical (effect of Friday's decision) is that claims of discrimination at work based on being transgender under the Iowa Civil Rights Act will be pled as gender discrimination in cases moving forward, whereas they would be pled as sex discrimination under Title VII," she said. "But in terms of the actual impact on the ground for employment protections for transgender people, I would not expect any lesser protection" in state court.

High court rejects state's defenses

Vroegh's supervisors, including since-retired warden Patti Wachtendorf, argued in their case that the unisex bathroom solution had been Vroegh's idea, not theirs. They further argued they were justified in keeping him out of the group facilities because, under their "business judgment," his presence in those spaces might be controversial for other employees.

But an employer is not allowed to use its "business judgment" for discriminatory reasons, McDermott wrote.

"Discriminatory action doesn’t somehow shed its unlawfulness simply because it’s done to placate the real or perceived biases of others," he wrote.

As for the dispute over the unisex bathroom agreement, McDermott wrote that "regardless of the duration, Vroegh didn’t waive his rights under the Iowa Civil Rights Act by agreeing to use the unisex restrooms" and that "if an employer’s action is discriminatory, the employer isn’t absolved simply because the employee may have acquiesced to it."

The state also argued it should have been able to present evidence of Vroegh's "motive" in bringing the lawsuit, allegedly in retaliation for his subsequent firing. But Vroegh's feelings about his firing, however strong, have no bearing on his feelings about the bathroom issue, McDermott wrote, and the state had "ample opportunity" at trial to challenge Vroegh's claims of emotional distress.

On the insurance issue, the court rejected the Department of Corrections' argument it was bound by the terms of policies agreed to with Vroegh's union. The Iowa Code states that a collective bargaining agreement cannot include provisions that conflict with other state laws, McDermott wrote.

Dismissal of claims against insurer Wellmark affirmed

The court also denied Vroegh's cross-appeal, which sought to revive claims he made against the Department of Corrections' health insurer, Wellmark , on the denial of coverage for surgery. McDermott wrote that it was the state, not the insurer, that controlled what procedures were or were not covered under the policy.

"Not every 'person' with a connection to an employment decision bears legal liability for a discriminatory action," McDermott wrote. "... Both the contract between Wellmark and the State, and the State’s benefit plan booklet provided to plan participants, make clear that Wellmark had no power in its coverage determinations to deviate from the State’s choices as reflected in the plan."

Justice Brent Appel wrote a partially dissenting opinion, disagreeing in part with the court's reasoning , and said he would have restored the claims against Wellmark.

"A fair inference from the record is that Wellmark, in the past, interpreted a narrow exclusion to broadly exclude coverage for surgery, that the inconsistency in the plan caused confusion, and that at least one employee was raising the issue of discrimination in connection with the exclusion," Appel wrote, adding that ".when controversy arose, Wellmark sought to ratify its past administrative interpretation by drafting a clarification and presenting it to the State for its approval."

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris.

This article originally appeared on Des Moines Register: Transgender nurse's discrimination case upheld by Iowa Supreme Court