The Missouri Supreme Court on Wednesday will consider two cases that could have far-reaching implications for the civil rights protections granted to the state’s LGBTQ community.

The judges will be asked to determine whether the Missouri Human Rights Act prohibits discrimination based on sexual orientation and gender identity, even though the words are not in the act itself. Lower courts are split on the issue.

“The question has been percolating in the courts for a number of years, and on a case-by-case basis, some people have been able to get relief and others have not,” said Tony Rothert, the legal director of the ACLU of Missouri. “It’s an important question, so we can know one way or another whether anti-gay, anti-transgender discrimination is legal in Missouri or not.”

Rothert’s organization has filed briefs in both cases supporting the notion that the Human Rights Act covers sexual orientation and gender identity.

The cases

R.M.A v. Blue Springs R-IV School District

The first case involves a Kansas City-area transgender teenager identified in court documents as R.M.A. The teen began living as a boy at the age of 9, and received a new birth certificate listing his sex as male.

For most of his school years, R.M.A used single-stall restrooms, including when changing for athletics and gym. But in 8th grade, he expressed an interest in using the boy’s locker and restrooms. When the school district said no, the mother and the teenager sued, claiming discrimination based on sex.

The legal arguments went like this: courts have ruled that sex discrimination also includes discrimination based on a gender-related trait such as pregnancy. R.M.A’s attorneys argued that gender identity was such a trait, and therefore R.M.A was protected by the Human Rights Act.

The school district and its board countered with two points. First, its attorneys said, gender identity isn’t specifically mentioned in the Human Rights Act and judges should not read something into the law that isn’t there. Sex, they write in their legal brief, is defined as distinguishing between male and female on the basis of reproductive organs, and that isn’t the reason R.M.A was treated differently. The district’s attorneys also argued that the district and the board are not “people” under the Act and therefore cannot be sued.

A Jackson County judge agreed with the school district in 2016 and threw out the case. The Missouri Court of Appeals reinforced that decision in July 2017.

The ACLU of Missouri is not the only group with an interest in the outcome. The American Medical Association, several LGBTQ rights groups and the Women’s Law Center have all filed briefs on R.M.A’s behalf. The Alliance Defending Freedom, a conservative Christian non-profit, is supporting the school district. The state of Missouri has also filed documents supporting the notion that school districts aren’t people and cannot be sued.

Harold Lampley and Rene Frost v. Missouri Commission on Human Rights

The second case involves two employees of the Missouri Department of Social Services, Harold Lampley and Rene Frost. Lampley, a gay man, filed a complaint with the state Human Rights Commission claiming discrimination based on sex. In a section of the complaint, Lampley wrote that he was being treated poorly at work because he “does not exhibit the stereotypical attributes of how a male should appear and behave.” Frost, Lampley’s co-worker, also sued, claiming that she faced discrimination and retaliation because of her friendship with Lampley.

The Human Rights Commission ruled that Lampley was claiming discrimination based on sexual orientation rather than sex, and denied both cases. An appeals court disagreed in an opinion issued in October 2017. “If an employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight,” the judges wrote. The state appealed.

In its brief submitted to the Supreme Court, the attorney general’s office makes the same argument it does in the case of R.M.A — the words sexual orientation appear nowhere in the Human Rights Act, and courts cannot read into a law language that isn’t there.

“In conclusory fashion, Mr. Lampley alleges that his supervisors harassed him because of his sex,” the state wrote. “Although Mr. Lampley labels his claim as sex discrimination, he does not claim or allege any facts showing that his employer treated men worse than women. In fact, Mr. Lampley does not claim that he failed to behave in any stereotypically male or female way. He alleges only that he is gay and that his supervisor did not harass non-gay coworkers. This case thus presents a claim of sexual-orientation discrimination, not sex discrimination.”

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