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Grey v. Hasbrouck

Court of Appeals of Illinois, First District, Sixth Division

May 22, 2015

LAUREN GREY, VICTOR WILLIAMS, and NICHOLAS GUARINO, on Behalf of Themselves and All Persons Similarly Situated, Plaintiffs-Appellees,
v.
LA MAR HASBROUCK, M.D., Director of the Department of Public Health, in His Official Capacity as State Registrar of Vital Records, Defendant-Appellant

Page 820

Appeal from the Circuit Court of Cook County. No. 11 CH 17091. Honorable Michael B. Hyman, Judge Presiding.

Affirmed.

FOR APPELLANT: Lisa Madigan, Attorney General, state of Illinois; Michael A. Scodro, Solicitor General; Jane Elinor Notz, Deputy Solicitor General, Brett E. Legner, Assistant Attorney General, Chicago, IL.

FOR APPELLEES: John A. Knight, Harvey Grossman, Ruth Z. Brown, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL; David M. Kroeger, Kyle A. Palazzolo, Jenner & Block LLP, Chicago, IL; James D. Esseks, American Civil Liberties Union Foundation, New York, New York.

JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Lampkin concurred in the judgment and opinion.

OPINION

HALL, Judge

Page 821

[¶1] The defendant, La Marr, Hasbrouck, M.D., State Registrar of Vital Records, appeals an order of the circuit court of Cook County awarding attorney fees and costs to the plaintiffs, Lauren Gray, Victor Williams and Nicholas Guarino, in conjunction with the entry of a consent decree. The sole issue on appeal is whether the award of attorney fees and costs was barred by the doctrine of sovereign immunity. For the reasons set forth below, we conclude that sovereign immunity does not bar the award of attorney fees and costs. We affirm the order of the circuit court.

[¶2] Section 17(1)(d) of the Vital Records Act (410 ILCS 535/17(1)(d) (West 2010)) provides in pertinent part as follows:

" (1) For a person born in this State, the State Registrar of Vital Records shall establish a new certificate of birth when he receives any of the following:
* * *
(d) An affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed. The State Registrar of Vital

Page 822

Records may make any investigation or require any further information he deems necessary."

[¶3] On May 10, 2011, the plaintiffs brought a class action lawsuit on behalf of themselves and a class of persons similarly situated against the defendant in his official capacity as the Director of Public Health and the State Registrar of Vital Records.[1] The plaintiffs and the members of the class are transgender persons who were born in Illinois.

[¶4] The complaint alleged that, prior to 2005, the defendant routinely changed the gender mark on Illinois birth certificates to accurately reflect the gender identity for persons who had undergone a form of gender confirmation surgery that did not include genital surgery. The plaintiffs further alleged that in or about 2005, the defendant adopted a practice in which he refused to correct the sex designation on an Illinois birth certificate to match the person's gender identification unless the person had undergone genital surgery. The plaintiffs maintained that in denying their applications to change the sex designation on their birth certificates without the genital surgery, the defendant violated the Vital Records Act and their rights to due process and privacy under the Illinois Constitution (Ill. Const. 1970, art. I, § § 6, 12). The plaintiffs sought declaratory and injunctive relief, and an award of costs and reasonable attorney fees pursuant to section 5 of the Illinois Civil Rights Act of 2003 (740 ILCS 23/5 (West 2010)) (the Civil Rights Act). On October 23, 2012, the parties entered into a consent decree resolving the substantive issues raised in the complaint.

[¶5] On December 11, 2012, the circuit court conducted a hearing on the plaintiffs' request for an award of attorney fees as provided for under the Civil Rights Act. The plaintiffs argued that the legislature intended to waive sovereign immunity under the Civil Rights Act by providing for the award of attorney fees. They further argued that the state officer exception to sovereign immunity applied. The circuit court agreed with the plaintiffs that the state officer exception applied in this case. The court ...


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