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Wednesday, February 27, 2019

Missouri Supreme Court Rules Gay and Transgender Plaintiffs Have a Claim under the Missouri Human Rights Act

A pair of cases decided by the Supreme Court of Missouri yesterday held that two plaintiffs — a gay employee and a transgender student — both stated sufficient allegations to proceed with a lawsuit under the Missouri Human Rights Act (“MHRA”).

Each of these cases was focused on the legal requirements for proceeding with a lawsuit, so there was little discussion of specific facts relating to either plaintiff’s claim. In Lampley v. Missouri Commission on Human Rights, SC96828 (Mo. banc February 26, 2019), the plaintiff was a gay male who alleged that he was harassed by his supervisor. The Court held, by a 5-2 vote, that plaintiff’s claim of sex discrimination under the MHRA could proceed. The Court split on the rationale for its decision. Three judges adopted the “sex stereotyping” theory that has prevailed in federal courts applying federal anti-discrimination laws, under which plaintiffs may pursue a claim that they were subject to sex discrimination by their employer because they did not conform to generally-held sexual stereotypes. Two other judges explained the decision without adopting that theory, simply holding that plaintiff could proceed with a claim that he was treated “differently … because of [his] sex.”

In R.M.A. ex rel. Appleberry v. Blue Springs R-IV School District et al. No. SC96683 (Mo. banc February 26, 2019), the issue was whether plaintiff student could use a school bathroom consistent with his stated gender identity. The Court held, by the same 5-2 vote, that the student’s allegations that his “legal sex is male” and that he was discriminated against in the use of a public accommodation based on that legal sex, were sufficient to pursue a claim.

Though the specific rationales stated in each of these cases are not sweeping, we believe these cases’ practical effect is that employees and other plaintiffs who are transgender, gay or otherwise gender non-conforming will often be able to state an MHRA sex discrimination claim. This does not mean that such plaintiffs will necessarily prevail in their claims — that will depend on the facts of each case. But the rulings mean that employers should consider in making employment decisions that such persons likely have rights under the MHRA. Employers should also review and consider updating their policies with respect to gender non-conforming employees, and especially transgender, gay and lesbian employees. In addition, employers who are public entities or maintain public accommodations should review any policies they may have with respect to public restrooms to ensure compliance with the decision in R.M.A

ThR.M.A. decision is of particular importance to school districts.  Previous transgender restroom cases in the school context had been brought under federal law (primarily Title IX, Title VII, or the federal constitution) but R.M.A. opens a state law cause of action as well, that could be available regardless of how the federal courts interpret those federal provisions.  Consequently, there is an additional, risky avenue by which school districts may be sued. 

Another important holding of the R.M.A. case is that school districts and their boards may be held responsible for public accommodation discrimination, allowing claims to be brought against more entities for this broadened category of discrimination.  In this case the plaintiff was a student, but the holding means it could be a parent or other individual as well.  

In light of the R.M.A. decision, school districts should review their policies and practices regarding transgender students, particularly with regard to access to restrooms, locker rooms, and other areas of public accommodation.  R.M.A. substantially increases the risk of litigation for school districts that do not allow use of facilities consistent with students’ gender identities.  

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our school lawyers if you have any questions.  

This update was prepared by Charles S. Elbert, Robert A. Useted, Kevin A. Sullivan, D. Leo Human, and Erin M. Leach.

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