Bench Memos

Law & the Courts

Judicial Activism in Missouri

(Carlos Jasso/Reuters)

Earlier this week the Missouri Supreme Court ruled in favor of a transgender teenager plaintiff who sued his school district alleging sex discrimination under Missouri’s Human Rights Act. The Missouri Supreme Court’s opinion reversed a lower state court decision that dismissed the suit.  Finding that the Missouri statute covers discrimination based only on one’s sex, not one’s transgender status, the lower court had ruled that the plaintiff failed to state a claim under Missouri law.

The Missouri Supreme Court’s majority opinion is remarkable for its flagrant disregard of the text of the Missouri statute at issue—not to mention decades of appellate court decisions refusing to expand the plain meaning of the word “sex” in analogous discrimination statutes.

The plaintiff in the suit alleged that he “is a female to male transgender teenager who was born as a female child and transitioned to living as male” while in the fourth grade. Notwithstanding his stated biological sex, the plaintiff alleged that his “legal sex is male.” The plaintiff claimed that he had been discriminated against by the school district “based on his sex” because he was not allowed to use male bathrooms and locker rooms.

The Missouri Human Rights Act prohibits discrimination in any place of public accommodation “because of race, color, religion, national origin, sex, ancestry, or disability.” The statute does not define the meaning of the word “sex.”

With little discussion, the majority opinion concluded that the plaintiff’s pleaded status—an individual whose “legal sex is male”—brings him within the statute’s reach. In contrast, Chief Justice Zel Fischer in his dissenting opinion undertook a textual analysis of the word “sex,” relying on a contemporaneous dictionary definition. Concluding that “[t]he plain, ordinary meaning of the word ‘sex’ refers to the biological classification of individuals as male or female,” he reasoned that the statute “prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.”

Chief Justice Fischer’s dissent also noted that the Missouri General Assembly had “expressly distinguished ‘sex’ from the concept of ‘sexual orientation,’ while repeatedly declining to adopt bills seeking to amend [the statute] to prohibit discrimination based on sexual orientation or transgender status.” In response, the majority confusingly and recklessly dismissed this fact as mere “legislative silence” that serves as a “poor beacon” for the court.

The dissent notes that the “overwhelming” majority of federal circuit courts have held that the federal sexual discrimination statute, Title VII, does not extend to discrimination not based on the binary conception of sex or gender. Yet Missouri now joins an alarming number of jurisdictions, including the Second and Seventh Circuits, that are suddenly re-interpreting decades-old discrimination statutes and expanding their reach to include transgendered individuals.

Sadly, the Missouri Supreme Court has earned its reputation as one of the most lawless courts in the country. For over a decade, the state has been engaged in a vigorous debate over the way in which judges of that court are selected; the dreaded commission-based “Missouri Plan” and decisions like this one are reminders of the desperate need for reform.

The people of Missouri deserve a supreme court that will follow the law. Instead they are stuck with one seemingly determined to follow prevailing political whims.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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