Nonbinary patron sues Toku Modern Asian at Americana Manhasset for discrimination

A frequent patron of an upscale Manhasset restaurant who identifies as nonbinary alleges management discriminated against them by ordering them out of the women’s restroom on a January evening last year, according to a lawsuit filed in state Supreme Court in Nassau.

Management later threw the patron out of the restaurant and months later denied them entry, the lawsuit states.

Joseph Gerbino, 33, of Englewood, New Jersey, and formerly Mount Sinai, was at Toku Modern Asian at the Americana Manhasset with friends. But this visit was different, Gerbino told Newsday Thursday with their lawyer, Adam Grogan, of the Syosset-based Bell Law Group.

"Never did I ever think that I would wind up in a situation where I would be basically ridiculed and attacked for being who I am," said Gerbino, who uses they/them pronouns. 

The lawsuit against Toku, Poll Restaurant Group, who are part-owners, and the employees involves claims the defendants’ actions violated both state and Nassau County human rights laws. It seeks $5 million in damages.

State law "prohibits discrimination in places of public accommodation on the basis of several 'protected characteristics'" that include gender identity and expression, according to the Division of Human Rights. Public places must allow people to use restrooms or other facilities that align with a person’s self-identified gender identity, regardless of their assigned sex at birth, anatomy, gender, appearance, medical history or sex on an identification, according to the agency. 

Toku Modern Asian did not return a request for comment. Poll Restaurant Group declined to comment when reached by phone at their corporate number. 

During the outing, Gerbino said they went to the women's restroom accompanied by two female friends and was first greeted and welcomed by the bathroom attendant as well as other diners.

But a female diner blocked the stall they were trying to access and stated, the lawsuit says, that they weren't "welcome in the women’s restroom." She also responded with profanity after Gerbino told her that as a nonbinary person they do not identify as either a man or woman, the lawsuit alleges. The woman left, saying she would contact a manager to have them removed, and Gerbino used the restroom, according to the lawsuit.

An unidentified female Toku manager entered the restroom, telling Gerbino that as a regular patron they "should know better," according to the lawsuit. The manager told them they didn’t belong there and asked them to leave the restroom or be banned from the restaurant, the lawsuit says.

Gerbino left with their friends and the female manager insulted Gerbino and came close to their face, the suit says. An unidentified male manager then stepped in, telling them they were no longer welcome at the restaurant, according to the lawsuit.

When Gerbino said they would file a complaint, the male manager "grabbed onto their shoulder and violently shoved them toward the exit," court papers state.

Then on April 28 Gerbino tried to go into Toku but was told they were barred from the facility.

Gerbino sustained "serious and severe permanent personal injuries, requiring psychiatric and mental health care and treatment," according to court papers.

"No one should ever have to experience anything like that in any way, shape or form, in a personal and or professional setting, but especially not for being who they are," Gerbino said.