Justices uphold finding that the state discriminated against transgender worker

By: - April 1, 2022 4:30 pm

The Iowa Supreme Court has upheld a jury’s finding that the Iowa Department of Corrections discriminated against Jesse Vroegh due to his transgender status. (Photo courtesy of the ACLU of Iowa)

The Iowa Supreme Court has upheld a jury’s finding that the Iowa Department of Corrections discriminated against an employee due to his transgender status.

In affirming a jury award and related lower court decisions in the case, the justices rejected the state’s argument that granting a transgender worker access to a men’s restroom would have generated controversy in the workplace. Discrimination, the court said, doesn’t “shed its unlawfulness simply because it’s done to placate the real or perceived biases of others.”

Rita Bettis Austen is the legal director of the ACLU of Iowa. (Photo courtesy of ACLU of Iowa)

Rita Bettis Austen, legal director of the ACLU of Iowa, which initiated the lawsuit on behalf of former corrections nurse Jesse Vroegh, called the ruling “a historic civil rights victory,” and said it was the “first jury verdict of this kind under the Iowa Civil Rights Act, and the first of its kind to go before the Iowa Supreme Court, so it’s a tremendously big deal.”

Bettis Austen said she was grateful to the jury and to the Iowa Supreme Court. “This was really clear employment discrimination, as the jury found and as the court upheld,” she said.

Vroegh, who worked as a prison nurse for the Department of Corrections for seven years, transitioned from female to male in 2014. By all accounts, he was then denied permission to use the men’s locker room and restrooms and was instead required to use a single-stall unisex room in a different building. In addition, the state employee’s health plan denied him coverage for a specific surgical procedure that would have been covered had it not been related to gender dysphoria.

“This has been a long time coming,” Vroegh said Friday. “I am so happy that my state Supreme Court has recognized that transgender people like me should be treated the same as everyone else — and that if a doctor says I should receive medical treatment, I get the treatment. I am doing this so that other transgender people do not have to go through what I have. As a nurse, I see on a regular basis how important it is for people to be treated equally when receiving medical care.”

Court records indicate Vroegh worked as a registered nurse at the Iowa Correctional Institute for Women from 2009 to 2016.

A few years after he began working in the prison, Vroegh was diagnosed with gender dysphoria, once called gender-identity disorder. In late 2014, he notified his supervisor, Kerri Friedhof, that he was transitioning from female to male, and in June 2015 he requested permission from Friedhof to use the male restrooms and locker rooms at work.

Friedhof told Vroegh that she would discuss the issue with her supervisors and report back. Five months later, Vroegh requested a meeting with Friedhof, the prison warden Patti Wachtendorf and others. At the meeting, Vroegh again asked for permission to use the male restrooms and locker rooms. Wachtendorf allegedly replied by saying she believed Vroegh’s use of the men’s facilities at the prison would be controversial and she instructed Vroegh not to use the men’s facilities.

In April 2016, Vroegh learned that he would need to use the unisex restrooms on a permanent basis, and that he wouldn’t be permitted to use the men’s restrooms or locker rooms in the prison where he worked. In December of that year, Vroegh was fired for allegedly sending someone confidential information about an inmate.

Suit claims discrimination on the basis of sex, gender identity

In August 2017, he sued the DOC for both sex discrimination and gender identity discrimination for denying him use of the men’s restrooms and locker rooms. He also sued for sex discrimination and gender identity discrimination for denying having denied him same level of health care benefit coverage that the agency provides to non-transgender employees, and he sued Wellmark for its role in administering the health insurance plan.

The claims against Wellmark were thrown out before the case went to trial, with the judge ruling that the company’s role in deciding the scope of coverage was very limited.

In 2019, the jury found in Vroegh’s favor on his sex discrimination and gender identity discrimination claims against the DOC with regard to the locker room and restrooms. For those claims, the jury awarded $100,000 in emotional distress damages.

The jury also found in Vroegh’s favor on his sex discrimination and gender identity discrimination claims against the Iowa Department of Administrative Services for denying him health insurance coverage. For these claims, the jury awarded $20,000 in emotional distress damages.

The court then awarded Vroegh attorney fees of $348,227.

Court rebuffs claims of controversy, mutual agreement

On appeal, the state claimed it had two non-discriminatory reasons to deny Vroegh restroom access: Wachtendorf was concerned about other staff members’ potential reaction to a transgender man using the facilities, and Wachtendorf had reached an agreement with Vroegh to use the unisex restrooms in the adjacent building.

In its ruling, the Supreme Court said that as to the state’s first reason, “discriminatory action doesn’t somehow shed its unlawfulness simply because it’s done to placate the real or perceived biases of others … If that were reason enough, surely much discrimination that our laws now outlaw could continue unabated under the guise of appeasing the discriminatory sensibilities of others.”

As to the state’s second reason for denying use of the men’s facilities, the court said Vroegh didn’t waive his rights under the Iowa Civil Rights Act by agreeing to use the unisex restrooms at least on a temporary basis. Those rights cannot be bargained away, the court said, even if all the parties are in agreement and acting in concert.

Court: Motive doesn’t matter

In its appeal, the state also argued the district court erred in refusing to let the DOC introduce evidence of Vroegh’s motive to sue by barring evidence of statements Vroegh had made about the warden “nailing her coffin” and his desire to put her “head on a stake.”

The state argued the evidence showed Vroegh was motivated by “vengeance” rather than “true emotional turmoil.” In its ruling, the Supreme Court said a party’s motive in bringing a lawsuit is generally irrelevant to resolving the claims on their merits.

“There’s no evidence linking the statements to the discrimination that Vroegh alleges,” the court noted, adding that the state had ample opportunity to cross-examine Vroegh about his alleged emotional distress.

The justices dismissed the jury’s verdict as to the sex discrimination claim, but affirmed the jury’s verdict as to the gender-identity discrimination claims, and affirmed the entirety of the jury’s damages award.

Dissenting opinion as to Wellmark’s role

As for Vroegh’s claims against Wellmark, the justices ruled that the claims against the company were “the same ones for which he already won a full judgment against the state,” and so any further pursuit of these claims against Wellmark would be ineffectual.

Justice Brent Appel wrote a dissent on that element of the case, arguing that it appeared Wellmark was a major player in deciding to exclude surgical coverage for gender reassignment.

“The key point here is that up until 2015, the benefits booklets developed by Wellmark had the express exclusion for mental health services for gender dysphoria, and had covered necessary surgeries without any exception for gender dysphoria,” Appel wrote. “Here is the real question: Where did the view that surgery was not covered come from? Who made that decision and when did it occur?”

Appel then pointed to testimony that suggested Wellmark was the driving force in that decision.

“This is clearly not a case where Wellmark simply exercised professional judgment and had nothing to do with the discriminatory action,” Appel wrote. “The inference may be drawn from the evidence, again viewed most favorably to the plaintiff, that Wellmark itself was a significant actor in the unlawful exclusion of surgery for gender dysphoria.”

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.