Missouri Supreme Court weighs whether 'sex' bias covers LGBT

JEFFERSON CITY, Mo. (AP) — Lawyers for a transgender student and a gay man argued before the Missouri Supreme Court Wednesday that state law protects LGBT rights even though sexual orientation or gender aren't mentioned in its human rights statute.

The court heard cases involving a transgender student kept from a boys' locker room and a gay man who said he was discriminated against as an employee of the Department of Social Services.

Missouri's Human Rights Act explicitly prohibits discrimination of religion, race, sex and other categories, but it does not specifically ban discrimination based on sexual orientation or gender identity.

If the court agrees that the prohibition on sex-related discrimination covers LGBT, it would have far-reaching consequences.

In the first case, a student identified only as R.M.A. sued the Blue Springs School District over being barred from using the boys' locker room and bathroom once he reached middle school. The student transitioned from female to male in fourth grade, was given a new birth certificate and was allowed to participate in boys' sports. But because he still had female genitalia the school told him to use a unisex bathroom.

His lawyer, Alexander Edelman, argued that this constituted "sex stereotyping," which previous courts had found illegal.

"Because he is not the kind of boy that the school district expected," Edelman said, "it's a form of sex discrimination."

Mark Katz, arguing on behalf of the district, said the school had honored the boy's transition but drew a reasonable line when it came to changing clothes.

"'Sex' is a relatively narrow construct," Katz said, and dealt only with reproductive organs. This was a case of gender identity, he said, which is not protected under Missouri law. But even that was beside the point, he argued, because the law only banned "persons" from discriminating, and a school district was not a "person" and therefore could not be sued in this case.

Questions were few and brief from the seven judges, although Judge Laura Stith did question why the student, if he was legally a boy, wasn't afforded the same rights as other boys.

The case had previously been dismissed by a lower court.

In the second case, a gay man named Harold Lampley said his supervisors at the Department of Social Services discriminated against him because he didn't "exhibit the stereotypical attributes of how a male should appear and behave." He also said he was retaliated against when he complained, and another co-worker who said she experienced similar treatment joined his suit.

This was also a case of "sex stereotyping," their lawyer Jill Silverstein said, and was therefore an inherently illegal act of sex discrimination.

How employees at the Department of Social Services acted, however, was not part of the case. Lampley's and Frost's suit was against the Missouri Commission on Human Rights, because the commission concluded that their case fell under the unprotected category of "sexual orientation" and declined to allow them to sue the Department of Social Services.

A circuit court previously sided with the commission.

Julie Blake, representing the commission, said Lampley had not provided enough evidence to the commission to prove his case. She also said "sex discrimination" could only involve men being treated different than women or vice versa.

Unlike the U.S. Supreme Court, the Missouri Supreme Court does not have a set deadline when it must issue a ruling, and can decide cases year-round.

Copyright Associated Press, all rights reserved.

The Gayly. April 26, 2018. 11:56 a.m. CST.