Boot-Strapping Trans-Discrimination Claims to Sex: Band-Aiding the Discrimination of Transgender People: R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist.

• Author: Walker, Zachary

1. INTRODUCTION

   R.M.A. was discriminated against merely because he identified as a male. (1) He was denied use of basic school facilities that are available to all other boys his age. (2) Under some federal and state laws, R.M.A. would be fully protected from such discrimination. (3) In Missouri, however, transgender individuals are not expressly recognized as a protected class. (4) Thus, until Missouri establishes safeguards for people who are discriminated against because of their transgender identity, R.M.A. and other transgender children must couch their claims as discrimination on the basis of "sex." (5)

   In Missouri, claims of discrimination may only be brought under one of the five protected classes listed in the Missouri Human Rights Act ("MHRA"). (6) The five protected classes are "race. . . religion, national origin, sex, . . . [and] disability." (7) This leaves transgender people vulnerable to discrimination. The Supreme Court of Missouri attempted to alleviate this problem in R.M.A. by Appleberry v. Blue Springs R-VI School District. (8) However, rather than holding that claims of transgender discrimination are protected under the MHRA, the court put a Band-Aid on the issue. (9)

   This Note brings to light the injustice that is being swept under the rug by the court's failure to recognize that the word "sex" lacks legal protections for transgender individuals in Missouri. Part II summarizes the underlying facts and holding of R.M.A. Part III discusses the background of the MHRA and its interplay with the meaning of "sex," including a brief overview of the differences between transgenderism, gender identity, sexual orientation, and sex. Part IV dissects the rationale of the majority and dissenting opinions with a brief look at a subsequent United States Supreme Court case discussing transgender discrimination. (10) Lastly, Part V examines the implications of R.M.A. and four possible solutions that the Supreme Court of Missouri can adopt to more adequately provide legal protection against transgender discrimination.

2. FACTS AND HOLDING

   R.M.A. attended Delta Woods Middle School. (11) He classified his legal sex as male. (12) While attending Delta Woods, he attempted to use both the boys' restroom and locker room. (13) However, the Blue Springs School District and their Board of Education ("Defendants") denied R.M.A. access to such facilities due to Defendants' belief that R.M.A. had female genitalia. (14) R.M.A. filed a complaint with the Missouri Commission on Human Rights ("Commission") against Defendants for sex discrimination in a place of public accommodation under the MHRA. (15)

   The Commission issued a right to sue, but R.M.A. unsuccessfully petitioned the court for a writ of mandamus. (16) R.M.A. next brought suit against Defendants in a Missouri circuit court. (17) Defendants filed a motion to dismiss for failure to state a claim, which the court sustained without explanation. (18) R.M.A.'s appeal to the Supreme Court of Missouri followed. (19)

   Defendants moved to dismiss on two grounds. (20) First, Defendants argued that "the MHRA does not cover claims based on gender identity." (21) Second, Defendants argued that schools and school districts are not "persons" as defined by Section 213.010 of the Missouri Revised Statutes. (22) Thus, according to the Defendants, R.M.A. did not state a claim under the MHRA. (23) The Supreme Court of Missouri disagreed, holding instead that R.M.A. stated a valid claim because he properly pled the following elements of the MHRA:

   (1) Plaintiff is a member of a class protected by Section 213.065;

   (2) Plaintiff was discriminated against in the use of a public accommodation (as defined by Section 213.010); and

   (3) Plaintiff's status as a member of a protected class was a contributing factor in that discrimination. (24)

   First, the Supreme Court of Missouri ruled that R.M.A. sufficiently pled that he was denied "'full and equal use and enjoyment' of a public accommodation" because Defendants denied him access to the boys' restroom and locker room. (25) Second, R.M.A. sufficiently pled that he belonged to a protected class by stating that his legal sex is male. (26) Third, R.M.A. sufficiently pled that the discrimination that occurred due to his sex was a direct and proximate cause of his damages. (27) Accepting all pled facts as true, the court found that R.M.A. sufficiently established facts that could lead a reasonable jury to find and return a verdict for Plaintiff. (28)

3. LEGAL BACKGROUND

   With the rise in differences in gender identities and expressions, courts have split on how to handle transgender discrimination without explicit statutory protection. R.M.A. represents a trend in protecting the rights of transgender individuals via various human rights statutes and cases. (29) In deciding this case, the court faced a variety of background considerations, including: (1) the traditionally misunderstood differences between sex and gender concepts, (30) (2) previous sex discrimination claims under the MHRA and how the statute has been interpreted in those instances, (31) (3) other state and federal protections provided to transgender persons, (32) and (4) the interpretation of statutes similar to the MHRA. (33)

   1. Background of Transgenderism and Gender Identity

      Defining the concepts of sex, sexual orientation, gender, and gender identity is paramount to understanding the basis of R.M.A.'s claim, yet these concepts are often confusing and mistakenly interchanged. (34) In general, sex refers to the biological and physical traits that distinguish males, females, and intersex persons. (35) Sexual orientation refers to the sex of persons to whom one is attracted, which is where terms such as gay, lesbian, and bisexual stem from. (36) Gender is the condition of maleness or femaleness determined by "attitudes, feelings and behaviors that a given culture associates with a person's biological sex." (37) Lastly, gender identity is the identification of one's self as male or female. (38)

      Where does transgenderism fit into this dichotomy? A transgender person is one whose "assigned biological sex [does not] match their felt identity." (39) For example, a person may have been assigned female at birth, as R.M.A. was, but his felt gender identity is that of a male. A transgender person may even express his gender as a male by adopting traits that his culture associates more with "maleness." (40) While the terms "trans" and "transgender" are relatively new, (41) nonbinary persons have existed for much of written human history. (42) Even within the United States, transgenderism is not new. (43) However, transgender people have historically been disenfranchised and continue to face hardships that legislation such as the MHRA was designed to protect. (44)

   2. The Missouri Human Rights Act and "Sex"

      Enacted in 1957, the MHRA initially only barred discrimination based upon "race or national ancestry." (45) At the same time, the Missouri General Assembly established the Commission "to encourage fair treatment . . . foster mutual understanding and respect . . . and discourage discrimination . . . ." (46) After being amended over the years, the MHRA now prohibits discrimination based on "race, color, religion, national origin, ancestry, [and] sex." (47) This statute codified a cause of action for those who experience discrimination in housing, (48) loans, (49) employment, (50) public accommodations, (51) and other areas. (52)

      Before R.M.A., transgender persons and other lesbian, gay, bisexual, and queer ("LGBTQ") groups were not afforded express protection under the MHRA because Missouri courts had construed "sex" to exclude sexual orientation, gender identity, and transgenderism. (53) Instead, Missouri courts have interpreted the word "sex" to concern only a person's biological distinctions. (54) For example, in Pittman v. Cook Paper Recycling Corp., the plaintiff alleged discrimination based on sexual orientation. (55) The Missouri Court of Appeals held that the term "sex" within the MHRA is unambiguous and requires a "clear meaning" interpretation. (56) The court determined that the clear meaning of the word "sex" is "a person's gender and has nothing to do with sexual orientation." (57) Thus, the court held that the plaintiff's pleadings did not state a sufficient cause of action because sexual orientation was not covered under the term "sex" in the MHRA. (58)

      Because Missouri has interpreted "sex" discrimination as requiring some discrimination based on a person's gender - thereby conflating gender with sex - pleadings must relate to some gender trait or the biological sex itself to create a sufficient cause of action. (59) In Lampley v. Missouri Commission on Human Rights, the Supreme Court of Missouri recognized that claims of sex stereotyping - presumably related to sexual orientation - are valid allegations of "sex" discrimination under the MHRA. (60) The plaintiff in Lampley, a homosexual male, brought suit against his employer for sex discrimination. (61) The court distinguished the case from Pittman based on how the plaintiff pled his protected class. (62) While the plaintiff in Pittman pled a hostile work environment based on "sexual orientation," (63) the plaintiff in Lampley alleged he was "discriminated against on the basis of sex because [he] did not conform to generally held sexual stereotypes." (64) According to the court, the fact that the plaintiff was gay was only "incidental to the basis for the discrimination." (65) The court reasoned that the alleged discrimination, as pleaded, actually stemmed from the fact that the plaintiff did "not exhibit the stereotypical attributes of how a male should appear and behave." (66) The court's holding suggests that individuals discriminated against based on their sexual orientation may still have sufficient causes of action if they disguise the claim as a valid allegation of sex discrimination under the

      MHRA. (67)

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