On August 8, the Missouri Commission on Human Rights (MCHR) formally closed a complaint filed by Chris Lawson for sex-based discrimination by his employer in 2015. Lawson, a transgender man, was treated with hostility by his employers because he did not act or appear in accordance with expectations of his gender.
Now, as of September 4, the ACLU of Missouri has filed a lawsuit to change that ruling, arguing that it is ultimately detrimental to the well-being of all Missouri citizens, particularly transgender and gender-non-conforming people, who can now be discriminated against by their employer for their gender identity or how they present themselves – how they speak, act, dress, or move through the world.
“There’s a law, in Missouri, that you can’t discriminate because of sex, including someone’s failure to comply with sexual stereotypes about what a man should be and do, and what a woman should be and do,” said Tony Rothert, ACLU of Missouri legal director. “And this decision basically has the effect of exempting transgender individuals, or other individuals who are gender-non conforming from the protection of Missouri’s law. That is unequal, and unfair, and contrary to the statute.”
In addition, Rothert said, this ruling creates harm outside the law – it takes a group of people who are already one of the most vulnerable in society and makes them even more so. Transgender people are disproportionately unemployed and experience violence, harassment and suicide at much higher rates than the rest of the population. The average life expectancy for transgender women, for example, is only 35, according to a 2014 study. That’s why Rothert asserted the MCHR’s ruling is “also harmful outside the law, outside the legal reasons, in that it takes a vulnerable group of people who are already subject to discrimination and hardship and allows them to – on a whim – be fired by any employer for simply being who they are.”
Lawson’s employer, Dollar General, refused to use his chosen pronouns – he, him, his – and supervisors instead informed him that they were to use no gendered pronouns for him. They also prevented him from using the men’s restroom, including a single-stall restroom that was available to other male employees, and insisted that he use the women’s restroom. The MCHR, however, has ruled that this does not count as gender discrimination, meaning that transgender employees who have been discriminated against by their employers on the basis of sex or gender may be unable to retaliate.
Rothert said that this ruling is part of a broader pattern on the part of Missouri government of discrimination against all minority groups, not just transgender people.
“The Legislature has, in recent years, taken steps to make it easier for employers to discriminate against employees, without recourse, putting additional barriers in the way of employees who’ve been discriminated against based on race or sex or any unprotected categories,” Rothert said. In 2017, the NAACP issued a travel advisory/boycott, suggesting that African Americans avoid Missouri, due to a new law that made it difficult to prove discrimination in housing.
“This is similar, in that it is part of the same scheme of making it easier for employers to discriminate and harder for employees to do anything about it,” Rothert said. “It’s different, in that, at least the heightening of what you have to prove to show discrimination was done through the legislative process. Elected officials made a decision and changed the law, and the governor signed it, and there’s a debate about it, including the travel advisory.”
This decision, he said, was made by a non-elected committee, without any public accountability. “This decision, to exempt trans and gender non-conforming individuals from protection against sex discrimination, has been made by an agency with no transparency as to why they’ve changed their position on this. There were no debates, and it’s not elected officials, it’s appointed officials. There’s no transparency, and no accountability. This is even more undemocratic and secretive.”
The ACLU of Missouri filed a similar lawsuit in 2010, under nearly identical circumstances, and were successful. “The agency changed its position for a while before reverting back to their original position recently,” Rothert said. He said a better course would be for legislators to amend the statute “to make explicit that it most certainly does protect individuals who are transgender or gender non-conforming, as well as everyone else in the state.”
Rothert said the ruling, besides being unfair, supports “stupid business.”
“You attract the best employees when they know they’re not going to be discriminated against,” Rothert said. “Employers can and often do have policies that explicitly prohibit discrimination based on sexual orientation and gender identity, and take steps to ensure that individuals, especially transgender and gender-non-conforming individuals, do not find themselves in a hostile work environment, by educating other employees and weeding out ignorance to make the workplace a comfortable place. That benefits the company by having a productive and effective workforce.”
