In two decisions handed down on February 26, 2019, the Missouri Supreme Court waded into two questions under the Missouri Human Rights Act (MHRA): whether sex stereotyping is enough to constitute a claim under the MHRA, and whether a student transitioning from female to male can insist on access to restrooms and locker rooms reserved for males. The court also waded into a question of proper procedure under Missouri administrative law. But in no respect did the Court—or at least not a majority of the court—dive in and fully resolve questions that have bedeviled litigants, judges, and the Missouri Commission on Human Rights (MCHR).
The male plaintiff in the first case, Lampley v. MCHR, who says he is gay, claims that he was discriminated against not because of his sexual orientation (which is not protected under the MHRA), but because his dress and behavior didn’t conform to “male” norms. In other words, he claimed that he was a victim of “sex stereotyping”—the theory that failing to conform to stereotypically “male” or “female” behaviors can lead to adverse actions. (See our comments about the Missouri Court of Appeals, Western District decision in this same case, “Courts Continue to Expand Sex-stereotyping Theory of Sex Discrimination,” Posted to TK January 29, 2018.) The female plaintiff alleged she was discriminated against because she associated with the male. The MCHR ruled that the claim fell outside the MHRA. The Court issued four opinions, none of which received the support of more than three of the seven judges.
Before the Court reached the substantive question, it turned to administrative law. In a series of recent cases, the Court has addressed the procedural requirements for someone challenging such an administrative decision made without a hearing. A dissenting opinion argued that because the plaintiffs sought a “writ of mandamus”—a particular kind of order compelling the MHRA to act on their case—they had to follow the steps required for seeking such a writ, but had not. A majority of the court refused to deny relief on that basis, with three judges construing the petition as not being limited to mandamus, and two others joining them in saying that at least in cases filed while standards have been confusing, the courts should excuse any procedural deficiency. From the four opinions, however, one thing is clear: anyone seeking to overturn an administrative decision made without a hearing should not limit themselves to seeking a writ of mandamus, but should instead expressly invoke broader statutory and constitutional language regarding the right to review and remedies.
Turning to the civil rights question, none of the judges questioned the conclusion that the MHRA does not prohibit discrimination based on sexual orientation. But five judges, in two separate opinions, distinguished sex stereotyping from sexual orientation. A three-judge plurality suggested that a sex stereotyping claim can be made under the MHRA. The two concurring judges said that the plurality went too far—but said that evidence of sex stereotyping can be used to support a claim for discrimination based on sex. All five agreed that the MCHR should not have dismissed the claims without considering that evidence. Because the time for further consideration by the MCHR has run, the plaintiffs can now take their evidence to a circuit court.
The second case, R.M.A. v. Blue Springs R-IV School District, was brought by R.M.A., a “female to male transgender teenager.” Here, the court was more unified—but not more definitive. Five judges joined the majority opinion, which concluded that it was enough, at the outset of the case, that R.M.A. alleged in the Petition that “R.M.A.’s legal sex is male,” and that R.M.A. was denied access to a “public accommodation”—the male restrooms and locker rooms—“on the grounds of his sex.” Thus the circuit court should not have dismissed R.M.A.’s case because R.M.A. did plead the basic elements of a sex discrimination claim under the MHRA. But the Court did not go any further than that—it did not determine whether R.M.A. could prevail on a claim of discrimination, or whether R.M.A. could even prove that his “legal sex is male.” Thus, the specifics of what protections may be afforded to transgender individuals under the MHRA remain unsettled.
The bottom line as to MHRA claims? The MCHR and circuit courts can’t simply say that sex stereotyping is merely form of discrimination based on sexual orientation and thus outside the scope of the MHRA. Nor can they refuse to consider a public accommodation claim by a transgender person. But the parameters of such claims will have to be resolved in future cases.
James Layton leads the firm’s Appellate practice group and is a member of the firm’s Commercial Litigation, Labor, and Education groups. He assists clients with analysis and presentation of complex legal issues in Missouri and federal courts, both trial and appellate. In addition to handling cases himself and with other attorneys at Tueth Keeney, Jim consults with clients on appellate strategy and assists other counsel in high-stakes, complex appeals.
Jim has briefed and argued cases before the U.S. Supreme Court and before all Missouri appellate courts—including more than 90 cases before the Missouri Supreme Court. He has represented clients in U.S. district courts and in Missouri circuit courts from Jackson County to the City of St. Louis. He has extensive experience with government-related litigation and state taxation disputes. Jim is a fellow of the American Academy of Appellate Lawyers, a past president of the Bar Association of the U.S. Court of Appeals for the Eighth Circuit, and a past chair of the American Bar Association’s Council of Appellate Lawyers. He is a frequent speaker in the areas of appellate practice and constitutional law, both state and federal.
Michelle Hammond Basi practices in the areas of school law, special education, school litigation, and labor and employment law. Michelle represents school districts throughout Missouri with respect to employment and termination matters, special education, Section 504, student discipline and student rights, civil rights, and church/state issues. Michelle has successfully represented school districts in student and employment matters before various federal and state courts and administrative agencies, including the EEOC, Missouri Commission on Human Rights, and the Office for Civil Rights. She is also a regular speaker at statewide and regional school law conferences.
Mollie G. Mohan practices primarily in the areas of labor & employment, litigation, and higher education. Mollie represents colleges, universities, and private employers in labor and employment matters. Prior to joining the firm, Mollie worked at a large-sized litigation firm in Saint Louis. While in law school, Mollie was a student law clerk to the Honorable Jean C. Hamilton of the United States District Court for the Eastern District of Missouri.