Last week, the Missouri Court of Appeals issued an opinion holding that gender identity is not covered by the prohibition on sex discrimination in the Missouri Human Rights Act. The opinion builds on a 2015 opinion from the same court, which held that sexual orientation was not covered under the MHRA.
Last week’s opinion arose from a lawsuit filed by a female-to-male high school freshman who alleged that he was not allowed to use the boys’ locker room or bathrooms at his school based on his sex. The MHRA prohibits discrimination on the grounds of sex in places of public accommodation—including schools. But it does not explicitly prohibit discrimination based on gender identity or sexual orientation.
The student’s lawsuit alleged that he had transitioned from female to living as male, had legally changed his name to a “male” name, had his school records amended to reflect his name change, and had legally amended his birth certificate. The lawsuit alleged that he was denied access to the boys’ locker rooms and restrooms because he “is transgender and is alleged to have female genitalia.” The theory of discrimination was that the student had been subjected to “different requirements for accessing the services of the school because of his sex.” The trial court dismissed the lawsuit for failure to state a claim upon which relief could be granted.
On appeal, the student argued that the dismissal was wrong because the MHRA “prohibits sex discrimination in public accommodation, including discrimination on the basis of gender-related traits.” In rejecting this argument, the appeals court recognized that the MHRA prohibits discrimination in public accommodation “on the grounds of … sex”—but not on the basis of “gender-related traits.” (The MHRA’s prohibition on employment discrimination uses the substantially similar language “because of … sex.”)
The court examined the plain meaning of “discrimination … on the grounds of … sex” as the legislature would have understood that phrase when sex was added as a protected class in 1965. In doing so, it recognized that Missouri courts have long viewed discrimination on the basis of sex to mean “depriving one sex of a right or privilege afforded the other sex, including a deprivation based on a trait unique to one sex.” This meaning of sex discrimination has not been changed by the legislature with subsequent amendments to the MHRA, and, thus, the court concluded that the phrase “discriminate … on the grounds of … sex” was intended “to mean depriving one sex of a public accommodation afforded the other sex, including deprivation based on a trait unique to one sex.”
With that understanding, the court then analyzed the student’s specific allegation that he identified as male and was denied access to public accommodations available to other males. The court construed this as an allegation that the student was being deprived of a public accommodation because he was transitioning from one sex to another—not that as a member of one sex, he was being deprived of a public accommodation given to the other sex. Moreover, the student did not allege that he possessed a trait unique to one sex that was relied on by the school to deny him a public accommodation given to the other sex. According to the court, the student’s “status as a transitioning transgender teenager is not unique to one sex, and is thus not susceptible to use as a means of depriving one sex of a right or privilege afforded to the other sex.” Ultimately, “[i]n enacting the MHRA, the General Assembly did not intend ‘discrimination on the grounds of sex’ to include the deprivation of a public accommodation–the boys’ restroom and locker room–because a person is transitioning from female to male.”
For Missouri employers, the takeaway is that gender identity and sexual orientation are not included in the MHRA’s prohibitions against sex discrimination. Employers should still exercise caution, however. For starters, several Missouri cities, including Kansas City and St. Louis, prohibit employment discrimination based on sexual orientation or gender identity. Moreover, once-settled federal case law on these issues has been called into question and is starting to change, culminating with the recent Seventh Circuit en banc opinion holding that sexual orientation discrimination is sex discrimination under Title VII and the Second Circuit’s recent decision to reexamine its precedent en banc.