I. Introduction
R.M.A.,
a transgender student attending high school in the Blue Springs R-IV School
District (“School District”), brought a discrimination lawsuit against the
School District and the Blue Springs School District Board of Education
(“School Board”) alleging both entities unlawfully discriminated against him on
the basis of his sex in violation of the Missouri Human Rights Act (“MHRA”).[1] After filing his lawsuit, the School District
and School Board (collectively, “Defendants”) filed a motion to dismiss for failure
to state a claim, which the circuit court sustained “without explanation.”[2] R.M.A. appealed.[3] The Supreme Court of Missouri reversed the
circuit court’s entry of judgment against R.M.A., holding that the facts set
forth in his petition, if taken as true, establish a claim for sex
discrimination under the MHRA.[4]
II. Facts and Holding
In
2014, R.M.A. filed a charge of discrimination with the Missouri Commission on
Human Rights.[5] His charge argued that he was discriminated
against in a public accommodation on the basis of his sex.[6] In 2015, the Missouri Commission on Human
Rights issued a notice of right to sue.[7] Later in 2015, after unsuccessfully
attempting to obtain relief via a writ of mandamus, R.M.A. filed the present
lawsuit.[8] R.M.A.’s petition stated that his legal sex
is male and Defendants discriminated against him by denying him access to the
boys’ restrooms and locker rooms in violation of RSMo 213.065.2.[9]
Approximately
one month after filing his petition, Defendants filed a motion to dismiss for
failure to state a claim, arguing that “(1) the MHRA does not cover claims
based on gender identity and (2) Defendants are not ‘persons’ as defined by
section 213.010(14) and used in section 213.065.2.”[10] In the following nine months, both parties
submitted multiple filings on the motion to dismiss.[11] In June 2016, the circuit court “sustained
Defendants’ motion to dismiss without explanation and entered judgment
dismissing R.M.A.’s petition with prejudice.”[12] R.M.A. timely appealed.[13] The Supreme Court of Missouri reversed the
circuit court, holding that R.M.A. alleged facts, which, if taken as true,
established a cognizable sex discrimination claim under the MHRA.[14]
III. Legal Background
R.M.A.
alleged Defendants violated RSMo 213.065.2.
In relevant part, that statute provides: “It is an unlawful
discriminatory practice for any person, directly or indirectly, to refuse,
withhold from or deny any other person . . . advantages, facilities, services,
or privileges made available in any place of public accommodation . . . or to
segregate or discriminate against any such person in the use thereof on the
grounds of . . . sex . . . .”[15] The MHRA does not define “sex.”[16] Never before has the Supreme Court of
Missouri explicitly described the MHRA’s prohibition of sex discrimination as
it relates to discrimination against transgender individuals.
IV. Instant Decision
A. Majority Opinion
A
motion to dismiss for failure to state a claim is an “attack on the plaintiff’s
pleadings.”[17]
As such, the motion challenges the
sufficiency of the pleadings, and courts must “accept all properly pleaded
facts as true, giving the pleadings their broadest intendment, and construe all
allegations favorably to the pleader.”[18] Missouri is a fact-pleading state, and a
plaintiff must plead ultimate facts – those that would enable the jury to
return a verdict for the plaintiff.[19] The sole job of a reviewing court is to
determine whether “the facts alleged meet the elements of a recognized cause of
action . . . .”[20]
The
Supreme Court of Missouri articulated that, according to the statute, the
elements of a sex discrimination claim under the MHRA are as follows:
“(1) plaintiff is a
member of a class protected by [RSMo] 213.065;
(2) plaintiff was
discriminated against in the use of a public accommodation (as defined by
[RSMo] 213.010); and
(3) plaintiff’s status
as a member of a protected class was a contributing factor[21] in that discrimination.”[22]
The
Supreme Court of Missouri used the Missouri Approved Instructions (“MAI”) to
further illustrate the elements and ultimate facts that R.M.A. must have
pleaded to survive the motion to dismiss. The substance of an applicable verdict
director in the case states the following:
Your verdict must be
for plaintiff [R.M.A.] if you believe:
First, [D]efendants] denied [R.M.A.] full and equal use and enjoyment of the males’ restroom and locker room facilities at defendants’ school, and
Second, [R.M.A.]’s male sex was a contributing factor in such denial, and
Third, as a direct result of such conduct, [R.M.A.] sustained damage.[23]
First, [D]efendants] denied [R.M.A.] full and equal use and enjoyment of the males’ restroom and locker room facilities at defendants’ school, and
Second, [R.M.A.]’s male sex was a contributing factor in such denial, and
Third, as a direct result of such conduct, [R.M.A.] sustained damage.[23]
Having
fully fleshed out the elements R.M.A. must have set forth in his pleadings, the
court next analyzed whether those elements had in fact been set forth and
pleaded – a “simple and straightforward” analysis.[24]
Public
accommodations include a school’s restrooms and locker rooms; having pleaded
that he was denied access to each, “R.M.A.’s petition alleges facts sufficient
to satisfy [the] first element” that “[D]efendants denied [R.M.A.] full and
equal use and enjoyment of the males’ restroom and locker room facilities at [D]efendants’
school.”[25]
“The
second element is [R.M.A.]’s membership in a protected class.”[26] The applicable statute establishes that sex is
a protected class, and R.M.A. pleaded his legal sex is male.[27] Thus, R.M.A.’s petition sufficiently
satisfied the second element.[28]
The
third element requires R.M.A. to have pleaded that his sex was a contributing
factor “in the denial of his use of a public accommodation.”[29] R.M.A. satisfactorily met this requirement by
pleading that he was discriminated against “on the grounds of his sex.”[30]
The
fourth element is damages, which R.M.A. sufficiently pleaded by alleging that
he had suffered damage.[31]
At
the motion to dismiss stage, R.M.A. was required only to plead the
aforementioned four elements. Having
done so with legal sufficiency, “the circuit court should have overruled
Defendants’ motion to dismiss.”[32] In addition, the Court went on to explain that
Defendants are a “person” under the MHRA.[33]
Having
found the dismissal of R.M.A.’s petition erroneous, the circuit court’s
judgment was vacated, and the case was remanded for further proceedings.[34]
B. Dissent
The dissent argued the
circuit court’s judgment should have been affirmed.[35]
In the dissenters’ view, the MHRA
prohibits discrimination only on the basis of “biological sex.”[36]
In other words, the dissent believes
that “sex” as used in the MHRA embraces only the “biological classification” of
“male” or “female.”[37]
The dissent characterized the majority
opinion as “incorrectly extend[ing] the MHRA beyond biological sex to include
claims of discrimination based on transgender status.”[38]
IV. Comment
The
sticking point between the majority and dissenting opinions is whether R.M.A.’s
petition truly alleges an instance of “sex discrimination.” The dissent would answer that inquiry in the
negative – in its view, sex discrimination is limited to discrimination based
on “biological sex,” and thus transgender individuals cannot claim protection
of the MHRA because they are being discriminated against on the basis of their
legal, rather than “biological,” sex.
As
an initial matter, this author points out that “biological sex” is a term
thrown around often when discussing transgender individuals but is vigorously
debated as a conceptual matter. What truly is “biological sex” – is it an
“absolute” given by nature, or is it, at its core, a concept shaped by
sociocultural beliefs? Such a discussion
is beyond the scope of this Note, but the validity of the “biological sex”
conceptual framework is a matter of extreme importance – as R.M.A. illustrates, the concept is often
invoked in law (by judges as well as parties to suit),[39] and its underlying
premises are worthy of critical thought.
Another
initial matter is of note. As the
majority writes:
[T]he debate in which the
dissenting opinion seeks to engage [regarding the definition of “sex” in
the MHRA] is premature. For now, the “academic manner” with which this
Court must view R.M.A.’s petition and this Court’s obligation to construe all
of R.M.A.’s allegations favorably and give them their “broadest intendment”
require this Court to conclude R.M.A.’s allegation he is male satisfies the
second element of a sex discrimination suit under the MHRA.[40]
Premature
though it may be, the disagreement between the majority and dissent is worth
discussing. What is perhaps most
interesting about the dissent’s position on “biological sex” is its belief that
such a narrow construction of the MHRA was the Missouri legislature’s intent.[41] The dissent writes that, “This Court's
primary rule of statutory interpretation is to give effect to legislative
intent as reflected in the plain language of the statute at issue.”[42] To be sure, that is entirely correct. Interestingly, of course – and as the majority
opinion rightfully points out – when crafting the MHRA, the legislature chose
to prohibit discrimination on the basis of “sex,” not “biological sex.”[43] As the majority writes,
It is telling that − in an opinion
emphasizing the significance of adhering to the plain language of the statute −
the dissent must add the word “biological” to the statute to reach its result. As this stage, R.M.A. is only required to
allege he was discriminated against on the grounds of his sex − which he did.[44]
Moreover,
the dissent did not squarely address that the Missouri legislature has in fact
spoken on the issue of a person’s “sex.” The dissent is of the apparent belief that “R.M.A.’s
sex was determined by the genitalia he displayed at birth and can never be
changed.”[45]
However, as the majority writes, “no
lesser authority than the General Assembly has acknowledged that one’s sex may
not remain throughout a person’s life what it was identified to be when that
person was born.”[46] The majority is referencing a Missouri statute
that enables individuals to amend their birth certificate to change their sex
designation provided they have a court order.[47] Despite this statute acknowledging that the
sex listed on one’s birth certificate may be changed, and despite the MHRA’s
prohibition of discrimination based on “sex” (not “biological sex”), the
dissent would hold that R.M.A.’s petition fails to state a claim for sex
discrimination.[48] To this author’s mind, the dissent strayed
from its own admonition that “[the] Court must enforce statutes as written, not
as they might have been written.”[49]
The
major takeaway of R.M.A. is this:
when sex discrimination is sufficiently pleaded by a plaintiff, courts should
not sustain a motion to dismiss for failure to state a claim simply because the
plaintiff is transgender. The MHRA
prohibits sex discrimination. R.M.A.
alleged sex discrimination – he did not allege discrimination based on transgender
status.[50] Therefore, his claim should have gone forward.
While
R.M.A. answers a basic question about
the viability of sex discrimination claims by transgender individuals under the
MHRA, it also raises many others. For
instance, R.M.A. does not squarely resolve
the importance of pleading one’s legal sex. What would have happened had R.M.A. not been
able to plead that his legal sex was male?
One can only speculate. From R.M.A., all one can confidently say is
that to safely defeat a motion to dismiss, transgender plaintiffs who allege
sex discrimination in violation of the MHRA need to be able to prove their
gender identity has been legally recognized – i.e., they need to plead their
“legal sex.” The court’s opinion does
not allow for the drawing of broader conclusions – future litigation will have
to shed further light on the issue.
But
what can establish someone’s legal sex?[51] R.M.A. amended his birth certificate, thus
clearly a Missouri birth certificate can establish legal sex for purposes of
surviving a motion to dismiss. But what
else counts, if anything? And what if
identity documents conflict? For
instance, what if one’s gender identity is recognized on a federally-issued
passport or other federal identity document, but not a state birth certificate? What is the individual’s “legal sex” under
state law in such a case? R.M.A. does not answer this question.
The
question is important because currently, the requirements for reflecting one’s
gender identity on federal documents like a passport are much less stringent
than the requirements for changing a Missouri birth certificate. Under current laws, changing a Missouri birth
certificate requires a “surgical procedure” and court approval.[52] Amending a passport, on the other hand,
requires only that a doctor affirm that an individual has had “appropriate
medical treatment,” and does not require a doctor or court to confirm than any
particular type of treatment or intervention has taken place.[53]
Moreover,
what about conflicts between state-issued identity documents? For instance, what if one’s gender identity is
listed on a Missouri driver’s license (which does not require surgery or a court order to amend), but not a Missouri
birth certificate – what is one’s “legal sex” in that case? R.M.A. does
not tell us. And of course, on a broader
note, R.M.A. says nothing about the
likely success of sex discrimination claims by transgender individuals – it
says only that they can survive a motion to dismiss for failure to state a
claim.
Though
questions remain to be answered, R.M.A.
ensures that transgender people who allege sex discrimination are not categorically
denied their day in court right out of the gate. For that, the case should be celebrated.
–Taylor Payne
[1]
R.M.A. v. Blue Springs R-IV School District, No. SC 96683 at *1, 2019 WL 925511
(Mo. Feb. 26, 2019) (en banc); see Mo. Rev. Stat. § 213.065.2 (2016).
[2]
Id. at *2.
[3]
Id.
[4]
Id. at *1.
[5]
Id. at *2.
[6]
Id.
[7]
Id.
[8]
Id.
[9]
Id.
[10]
Id.
[11]
Id.
[12]
Id.
[13]
Id.
[14]
Id. at *1–2.
[15]
Id. at *3.
[17]
R.M.A., 2019 WL 925511 at *3.
[18]
Id.
[19]
Id. at *4.
[20]
Id. at *3.
[21]
The Supreme Court of Missouri noted that S.B. No. 43 (2017) abrogated the
“contributing factor” test established by earlier precedent, but the
“motivating factor” test implemented by S.B. No. 43 did not apply to R.M.A.’s
petition because his petition was filed before the law was enacted. Moreover, the court noted that S.B. No. 43 “would
have no bearing on the sufficiency of R.M.A’s petition.” Id. at
*4 n.3. The court stated that R.M.A.’s
petition, which alleges he was discriminated against “‘on the grounds of,’
‘based on,’ and ‘because of’ his sex . . . plainly satisf[ies] both the
‘contributing factor’ test in Daugherty
and the ‘motivating factor’ test in section 213.010(2) and (19), RSMo Supp.
2017.” Id.
[22]
Id.
[23]
Id. at *5 (alterations in original).
[24]
Id.
[25]
Id. at *5–7.
[26]
Id. at *7.
[27]
Id.
[28]
Id.
[29]
Id. at *8.
[30]
Id.
[31]
Id. at *9.
[32]
Id. at *10.
[33]
Id. at *10–12.
[34]
Id. at *13.
[35]
Id. at *14 (Fischer, J., dissenting).
[36]
Id.
[37]
“The plain, ordinary meaning of the word ‘sex’ refers to the biological
classification of individuals as male or female.” Id. at
*17.
[38]
Id. at *16.
[39]
Interestingly, R.M.A.’s petition stated that R.M.A. is a “biological female
whose legal sex is male.” Id. at *14. The dissent seized upon this language in its
opinion decrying the majority’s decision. This author thinks lawyers are wiser to, with
the client’s consent, avoid the use of “biological female” or “biological male”
and instead use the phrase “assigned female at birth” or “assigned male at
birth.” Courts have recently and more
frequently begun using terms like “sex/gender assigned at birth” – an
indication that they understand the concept and grasp the importance of
recognizing that someone other than the individual has assigned a “sex” to the
individual. See Adams v. Sch. Bd. of St. Johns Cty., Fla., 318 F. Supp. 3d
1293, 1312 (M.D. Fla. 2018) (“The School Board’s bathroom policy cannot be
stated without referencing sex-based classifications, as it requires what it
terms ‘biological boys’ – intended by the School Board to mean those whose
sex assigned at birth is male – to use the boys’ bathrooms
. . . .”); F.V. v. Barron, 286 F. Supp. 3d 1131, 1139 (D. Idaho 2018)
(“Dani is a transgender person who was assigned the sex of male at birth.”); Evancho v. Pine-Richland Sch.
Dist., 237 F. Supp. 3d 267, 296 (W.D. Pa. 2017) (“Courts have long interpreted ‘sex’ for Title VII
purposes to go beyond assigned sex as
defined by the respective
presence of male or female genitalia.”). Thus,
plaintiffs need not plead a “biological sex” if they are skeptical of the “biological
sex” construct and/or feel that what is listed on their birth certificate is
more appropriately described as their “assigned gender/sex.”
[40]
Id. at *8 n.7.
[41]
“This Court's primary rule of statutory interpretation is to give effect to
legislative intent as reflected in the plain language of the statute at issue.”
Id.
at *16 (quoting Laut v. City of Arnold,
491 S.W.3d 191, 205 (Mo. 2016) (en banc) (quotations omitted)).
[42]
Id.
[44]
R.M.A., 2019 WL 925511 at *8 n.8.
[45]
Id. at *7 n.7.
[46]
Id.
[48]
R.M.A., 2019 WL 925511 at *19–20.
[49]
Id. at *16 (quoting City of Wellston v. SBC Commc’ns, Inc.,
203 S.W.3d 189, 192 (Mo. 2006) (en banc)).
[50]
“R.M.A. does not claim protection under the MHRA based on his transgender
status but, rather, based on his sex.” Id. at *9 n.9. Moreover, at the motion to dismiss stage, it
is not the duty of courts to decide which properly pleaded facts are more or
less credible. Properly pleaded facts
are taken as true, and the majority faithfully applied this standard.
[51]
Pleading a legal sex may present obstacles for transgender individuals who lack
the resources or ability to amend legal documents.
[52]
See Mo. Rev. Stat. § 193.215.9 (“Upon receipt of a
certified copy of an order of a court of competent jurisdiction indicating the
sex of an individual born in this state has been changed by surgical procedure
and that such individual’s name has been changed, the certificate of birth of
such individual shall be amended.”).
[53]
See Know Your Rights: Passports, National Center for Transgender Equality,
https://transequality.org/know-your-rights/passports.
