A couple of test cases in the Missouri Supreme Court could determine whether transgender and gay people will have a path to sue under sex discrimination claims. Members of both groups made such arguments before the high bench Wednesday.
Attorneys for a transgender boy from Blue Springs made his case for sex discrimination by, a among other things, likening his case to that of a pregnant woman. They reason that pregnancy discrimination is still sex discrimination because pregnancy is a gender-related trait, and therefore, another category such as gender doesn’t remove what is otherwise sex discrimination.
In the case of the transgender boy, he’s been denied access to boy’s bathrooms and locker rooms at school because of his gender identity.
The state Human Rights Commission issued him a right to sue letter, but lower courts have dismissed his case without specifying a reason.
The other case before the Supreme Court involved a gay man and female coworker who claim discrimination based on sex.
The man contends he was treated poorly at work because he “does not exhibit the stereotypical attributes of how a male should appear and behave.” The woman claims she was victimized because of her association with the man.
The Human Rights Commission concluded he was claiming sex discrimination based on sexual orientation instead of sex. It denied both the man and woman a right to sue letter, determining it did not have jurisdiction to do so because the state Human Rights Act provides no protections for sexual orientation.
But an appeals court reversed the decision and ordered a lower court to instruct the commission to issue a letter. Interestingly, it was the same appeals court, the Western District in Kansas City, that both dismissed the transgender boy’s case and reinstated the right to sue for the gay man.
Before the Supreme Court Wednesday, six Friend Of The Court documents were filed in support of the transgender boy from groups including the American Civil Liberties Union (ACLU), Transgender Law Center, American Medical Association, Lambda Legal, GLAD, Women’s Law Center and the Missouri based organization PROMO.
The ACLU also submitted a document supporting the gay man.
Jeffrey Mitten, ACLU Missouri Executive Director, thinks the Supreme Court should look at both the gay man and transgender boy as victims of sex stereotyping.
“The law argues that discriminating against somebody based on stereotypes, based on presumptions of what they should do, how they should act, what they should say because of their sex is in fact prohibited sex discrimination,” said Mittman. “And we hope and expect the Missouri Supreme Court will recognize that.”
The state filed a friend of the court brief for the case involving the transgender boy. It said the school, as a government entity is not required to provide him accommodations.
The state said that prohibitions, “relating to public accommodation applies only to “persons,” and the definition of that term excludes the government.”
Attorneys for both the transgender boy and the gay man included points from the landmark 1989 Supreme Court Price Waterhouse versus Hopkins case in their arguments.
Among other things, the Price Waterhouse case established that “gender stereotyping” can be used to claim sex discrimination.
After hearing arguments Wednesday, there is no set timetable for when the Supreme Court might issue it’s decision in the case.