Transgender employee wins big jury verdict: Here’s why

A transgender employee of the Iowa Department of Corrections recovered a six-figure jury verdict. He claimed his employer violated state law by denying him health insurance benefits and access to certain facilities at work.

In 2009, Iowa’s Department of Corrections hired Jessie Sue Vroegh to work as a registered nurse at the Iowa Correctional Institute for Women.

Diagnosis Leads to Transition

A few years later, Vroegh was diagnosed with gender dysphoria. The Mayo Clinic’s website describes gender dysphoria as “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 hormone therapy. In 2014, he started living publicly as a man.

He also notified his supervisor that he was transitioning from female to male.

Name Change and More

He changed his name to Jesse Samuel Vroegh and changed the name and gender on his birth certificate, driver’s license, Social Security card and nursing license. He also changed it on his permit to carry firearms.

In June 2015, Vroegh asked for permission to use men’s restrooms and locker rooms at work.

His supervisor said she’d talk to her supervisors and report back. She apparently didn’t. Five months later, Vroegh asked for a meeting on the subject with her, Warden Patti Wachtendorf, the prison’s medical director and a union rep.

Employer Denies Request

Wachtendorf and the medical director believed it would cause controversy if Vrough used men’s facilities. They told him not to do so.

Vroegh suggested they change two single-stall gender-specific restrooms in a separate administrative building to gender-neutral restrooms. He could use those, he said.

He believed this was only a temporary solution while the prison changed its policies. But Wachtendorf believed Vroegh had proposed a permanent solution, and one that he wanted.

Health Insurance Issue Arises

Also in 2015, Vroegh sought health insurance coverage for a double mastectomy so his body would match his male identity.

His doctor testified medical professionals consider this a medically necessary procedure to relieve the distress of gender dysphoria.

The department’s medical plan allowed coverage for mastectomies for a medically necessary reason. But it didn’t allow them to treat gender dysphoria because “gender reassignment surgery” was not covered. For that reason, Vroegh’s did not get the surgery under the plan.

In April 2016, Vroegh learned that the department expected him to use the unisex restrooms on a permanent basis.

Arbitrator Upheld Terminaton

The department fired Vroegh in December 2016 based on an allegation that he sent confidential information about an inmate to a third party. An arbitrator upheld the termination decision.

Vroegh did not challenge the termination as discriminatory. But he did sue the department and Wachtendorf. He alleged sex discrimination and gender identity discrimination under the Iowa Civil Rights Act (ICRA) for not letting him use men’s restrooms and locker rooms at the prison.

He also sued the department and the Iowa Department of Administrative Services (DAS). That is an agency that provides services, including human resources, to state agencies. He said it wrongfully denied him healthcare benefits.

Jury Goes to Work

The case went to trial.

During deliberations, the jury sent a question to the judge asking: “How are we defining sex vs. how are we defining gender identity? i.e. is sex = biological sex or sex on legal documents or should it [be] considered the same as gender identity in the instructions?”

The judge responded: “Sex is a term used to assign or identify an individual’s gender. Gender identity is but one component of the concept of sex. Gender identity is an individual’s sense of their own gender which may or may not comport with the sex or gender assigned to them at birth.”

The jury found in Vroegh’s favor. It awarded him $100,000 in past emotional distress damages for his claims against the DOC and Wachtendorf for denying him use of the men’s restrooms and locker rooms. It further awarded him $20,000 in emotional distress damages for his claims against the DAS for denying him health insurance coverage.

The court tacked on another $348,227 in attorneys’ fees.

The state appealed. The Iowa Supreme Court upheld the ICRA gender identity verdicts but reversed the ICRA sex discrimination verdict – but it let the money awards stand.

Unlike Title VII, Iowa’s ICRA specifically bars employers from discriminating against employees based on their transgender status. Iowa added this provision to its law in 2007.

Past Ruling Is Relevant

In a 1983 decision, Sommers v. Iowa Civil Rights Comm’n, the Iowa Supreme Court decided an employer didn’t violate the ICRA as it then existed (with only a bar on sex bias) by: 1) not letting a transgender woman use the women’s room, and 2) firing her for being transgender. The court found “sex” is not the same thing as “gender.”

In that case, the court wrote that gender “relates to behavior, feelings, and thoughts and does not always correlate with one’s physiological status” – and that sex “denotes male or female, but not both.”

Supreme Court Says …

The U.S. Supreme Court has reached the opposite conclusion about claims brought under Title VII. In its 2020 decision in Bostock v. Clayton County, Georgia, it held that discrimination on the basis of transgender status is discrimination on the basis of sex.

Sommers was Iowa’s first – and last word – on the issue, and the judge at Vroegh’s trial reasoned that Sommers had been abrogated by later decisions from federal courts, especially Bostock.

But the Iowa Supreme Court found it got this wrong, pointing out that “Iowa’s courts have interpretive authority over Iowa’s statutes.”

What Did Legislature Intend?

In interpreting a law, courts must uphold the intent of the legislature. And in upholding the distinction stated in Sommers, the Iowa Supreme court added, “We may not through the judicial metamorphosis of words declare a Hulk where the legislature placed merely Bruce Banner.”

But though it reversed two of Vroegh’s wins, the Iowa Supreme Court preserved the damages award.

It found the error came from the judge’s response to the jury’s question. It improperly suggested sex and gender bias are the same thing under the ICRA.

Such errors merit reversal of a money award only if they unfairly impact the other party, which this did not. Also, the verdict form didn’t have the jury separately list amounts for sex bias and transgender bias.

Instead, it asked for a total amount to compensate Vroegh for emotional distress.

Just Leave It

The court wrote, “We thus have no easy method of striking damages awarded for sex discrimination while leaving undisturbed damages for gender identity discrimination.”

It concluded that “the jury based its award on the emotional distress that Vroegh suffered from gender identity discrimination, not sex discrimination” – and found “the amount of damages the jury awarded should not be disturbed.”

Vroegh v. Iowa Dep’t of Corrections, No. 20-0484, 2022 WL 981824 (Iowa 4/1/22).