Missouri discrimination cases could have far-reaching implications

St. Louis, Mo., Mar 7, 2019 / 00:08 am

The Missouri state Supreme Court issued two discrimination rulings last week related to sexual orientation and gender identity, both of which could lead to changes in the way discrimination is defined in the state, a Catholic public policy advocate told CNA.  

Tyler McClay, an attorney and executive director of the Missouri Catholic Conference, expressed concern about the rulings, as it is now possible for "discrimination" under the Missouri Human Rights Act to be redefined if these plaintiffs win their court cases.

In one case, Harold Lampley, a gay man, sued the Missouri Commission on Human Rights in 2015, alleging that because he does not conform to "stereotypical expectations" of how a male should behave, he and his friend Rene Frost were harassed in their workplace.

Though the circuit court originally threw out the case, the Supreme Court's ruling last week will allow Lampley to sue his former employer, with judges writing in the opinion that the question of whether Missouri's human rights laws protect people from sex-based stereotyping had not yet been addressed.

The Eighth Circuit Court had previously ruled that the Missouri Human Rights Act, which was amended during June 2017, does not include sexual orientation in its list of protections. The law does specifically mention race, color, religion, national origin, ancestry, sex, disability, age and familial status.

In a separate case, the Court ruled Feb. 26 that a transgender student had the right to sue the school district that denied the student access to the boys' restroom and locker rooms. The student, identified in court documents as R.M.A., alleges discrimination on the basis of sex. The student was born biologically female but identifies as a male.

The Missouri Supreme Court's latest ruling states that R.M.A. did not claim protection from the law based on his transgender status, but rather because of "sex," a term which the state's human rights statute does not define. Moreover, although the student remains biologically female, the student had changed the gender on their birth certificate to male, in accordance with existing Missouri law. Therefore, R.M.A.'s lawsuit against the Blue Springs school district will be allowed to go forward.

In an interview with CNA, McClay explained that the cases could impact what constitutes discrimination under state law.

"The reasoning in the gay employee case had to do with him saying he was discriminated against because he didn't act like a man, and so they consider that to be sex-stereotyping discrimination," he said.

"I'm kind of surprised that the court would define sex-based discrimination based on those fact patterns," he said. "Maybe the court feels like there's no other way for this [plaintiff] to get relief than for us to say, 'you can sue on this ground.'"

On the transgender student case, McClay said the debate revolves around the fact that the school would not allow a biologically female student to use the male bathroom facilities.

"The court now has to make a decision: is that accommodation that was being made for that student discrimination? I would argue that it's not, it's an accommodation that's respecting the privacy of the other students and the safety of that individual student. Regardless of how well-accepted that person is by the other sex, you're putting that person in a difficult situation," he said.

"As a policy matter, we have to decide; if we have these situations, how are we going to deal with these cases at the high school and elementary school level?"

These two cases have broader implications, too, he said, for faith-based organizations - such as adoption agencies that only place children in homes with a mother and a father - that could be accused of discrimination if the interpretation of the law changes.

"Faith-based organizations that have contracts with the government; are they going to be able to continue to operate according to their faith systems going forward?" McClay said. "Or are they going to be deemed to be discriminatory, and excluded?...Those agencies do a lot of good."

"The important thing for people to recognize is there are not just religious liberty implications, but there are privacy implications and rights of conscience as well," McClay said.

"If sex discrimination is, in a sense, discrimination based on gender identity, then does a doctor who doesn't want to do gender transition surgery have the right to refuse? Or is that discrimination? Is the hospital that doesn't want to do the procedures for religious reasons, is that now going to be discrimination? I think those are the concerns that I have going forward," he said.

There are also pushes to change the Missouri Human Rights Act to explicitly outlaw discrimination based on sexual orientation and gender identity. The Missouri Nondiscrimination Act, which would list both as protected categories, has been pending in the state legislature since 1998, the Associated Press reports.