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Advocates call LGBTQ rulings a positive step

A pair of Missouri Supreme Court rulings have opened the door for LGBTQ individuals to bring sex-discrimination claims under the Missouri Human Rights Act, but the rulings don’t settle the issue of sexual orientation and gender-identity discrimination once and for all.

On Feb. 26, the Supreme Court revived the previously thrown-out cases of Harold Lampley, a gay man seeking redress for workplace harassment, and R.M.A., a transgender teen seeking restroom and locker-room access in his school.

The rulings did not, however, explicitly expand the limits of the Missouri Human Rights Act, which prohibits discrimination in housing, employment and places of public accommodations, to include sexual orientation or gender identity.

Advocates say the rulings are a start but don’t go far enough to protect all citizens. They say the passage of the Missouri Nondiscrimination Act, also known as MONA, is still necessary to ensure LGBTQ citizens are included as protected classes.

Rep. Greg Razer, D-Kansas City, is sponsoring MONA legislation this session. He called the rulings “a positive step forward.”

“I think we still definitely need to beef up our anti-discrimination laws,” Razer said.

Rep. Ian Mackey, a Democrat from St. Louis who is also an attorney, was in agreement with his colleague.

“I think it’s great. I think it’s exciting for those litigants,” he said. “I think there are plenty of folks who are being discriminated against for their sexual orientation that are not protected.”

Mackey said MONA would protect Missourians who wouldn’t be able to make a strong legal argument that they were discriminated against on the basis of sex, based on the Supreme Court’s recent pair of rulings.

Mackey pointed to a recent case involving a lesbian couple in St. Louis who alleged a retirement community discriminated against them by denying them housing. A federal judge dismissed their suit because the federal Fair Housing Act does not include sexual orientation. If MONA were in place and they sued in state court, their case would have been stronger, he said.

“It’s not so simple to say everybody who’s gay should sue under sex discrimination,” he said. “[Lampley’s] case is specific to his facts. There are plenty of people whose facts don’t line up.”

In Lampley’s case, he alleged his employer, Missouri’s Department of Social Services Child Support Enforcement Division, discriminated against him because he did not conform to stereotypical perceptions of how a male should appear and behave. Lampley was joined in his case by his colleague Rene Frost, who alleged she suffered discrimination because she associated with Lampley.

The Missouri Human Rights Commission threw out their claims after finding that they are not covered by the MHRA because the act does not cover claims based on sexual orientation.

In a 5-2 ruling, with Chief Justice Zel M. Fischer and Judge W. Brent Powell dissenting, the majority of the Supreme Court ruled that Lampley and Frost sufficiently stated a claim for sex discrimination under the MHRA. The court remanded the case with an order that the commission issue Lampley and Frost right-to-sue letters.

The ruling does not interpret the Missouri Human Rights Act as permitting discrimination claims on the basis of sexual orientation: Six judges agreed that it was unnecessary for the court to reach any conclusions on that in the case at hand.

stock photo

stock photo

In a partial dissent, Fischer said that discrimination based on sexual orientation is not covered by the act.

A minority of the judges, Judges George W. Draper III, Patricia Breckenridge and Laura Denvir Stith, agreed that the plaintiffs’ claims were based on sex stereotyping and not Lampley’s sexual orientation.

In a separate concurring opinion, Judges Paul C. Wilson and Mary R. Russell agreed that Lampley and Frost sufficiently stated their claim, but they disagreed with Draper, Breckenridge and Stith that the court needed to go so far as to remark on the plaintiffs’ sex-stereotyping arguments.

Jill A. Silverstein of Sowers & Wolf in St. Louis, who represented the plaintiffs, said she sees the ruling as extending sex discrimination “to individuals who may not exhibit the traditional look or behaviors of someone who is male or female.”

“It just recognizes that sex stereotyping is part of sex discrimination,” she said.
“ . . . When you stereotype, you’re relying on some held belief that may or may not be rational, related to someone’s conduct.”

The Missouri Attorney General’s Office represented the commission and its director. A spokesman for the office said it is reviewing the decision but declined to comment further.

In the second case, R.M.A. sued the Blue Springs R-IV School District and its board of education for sex discrimination after he was denied access to school facilities, restrooms and locker rooms that aligned with his gender identity.

A Jackson County circuit judge dismissed his case for failure to state a claim. R.M.A appealed the dismissal.

In the 5-2 ruling, the Supreme Court held that the circuit court should have overruled the district’s motion to dismiss. Fischer and Powell again dissented.

The court vacated the judgment and remanded the case.

Alexander Edelman of Edelman, Liesen & Myers in Kansas City represented R.M.A. He said he was pleased with the ruling.

“By recognizing that Missouri’s prohibition on sex discrimination applies to all Missourians, regardless of their sexual orientation or gender identity, this ruling reaffirms what the legislature declared in section 213.065 of the Missouri Revised Statutes, that ‘All persons within the jurisdiction of the state of Missouri are free and equal,’” Edelman said in a statement. “Hopefully, the discrimination R.M.A. faced will soon be a thing of the past.”

Mark D. Katz of Coronado Katz in Kansas City represented the school district and its board. Katz did not return a call seeking comment.

The ACLU of Missouri, which filed amicus briefs in both cases, applauded the rulings.

“Members of the LGBTQ community should enjoy the same protections against sex-based discrimination as everyone else,” ACLU Legal Director Tony Rothert said in a statement. “Excluding LGBTQ individuals from legal protections was justified by outdated, destructive stereotypes and ignored the lived reality of thousands of people in our state.”

The cases are Lampley et al. v. Missouri Commission on Human Rights, SC96828, and R.M.A., by next friend Rachelle Appleberry, v. Blue Springs R-IV School District et al., SC96683.