Last week the Missouri Non-Discrimination Act (MONA) was re-introduced in the Missouri state legislature, a bill that enumerates sexual orientation as a protected class. As most such non-discrimination bills, the language includes that of employment protections and access to public accommodations. MONA does provide protections for gender identity, in that the legal description of sexual orientation in Missouri's Hate Crimes Act includes the term gender identity.
Concurrently, Missourians for Equality is petitioning to place a measure on Missouri's November 2014 ballot that seeks to repeal Missouri's Human Rights Act and replace it with a Human Rights Act that enumerates both sexual orientation and gender identity, clearly in the language. Missourians for Equality's language does include that of non-discrimination and public accommodations. That puts two efforts for non-discrimination, one effort through the legislature, the other to be decided by voters. MONA has been introduced many times and has never made it to a vote. Just after it was introduced this session, Missouri House Speaker Tim Jones has stated opposition to a non-discrimination law stating last week, "I'm not in favor of creating more protected classes and encouraging more litigation on our Missouri employers and job creators," which effectively staves off the likelihood of MONA passing in the very near future. Missourians for Equality will be deciding on placing their effort on the 2014 ballot based on fundraising, resources, polling, and public support/momentum as it gathers signatures for the petition to place it on the ballot.
At risk for the ballot proposal, is 'gender identity,' which would if the ballot measure were to pass, make trans-identified people a protected class in clear language. This language would no doubt bring unwanted attention and anti-Trans politics in the form of 'men in dresses in the women's restroom' rhetoric as we have seen so many times before in anti-Trans political media. When asked of these ramifications, Aaron Malin, Executive Director of Missourians for Equality replied that he was aware of such ramifications and the risk, but has said there is a plan being developed specifically to counter such 'Bathroom Bill' rhetoric in the year ahead of the ballot proposal.
The question remains as to whether to keep 'gender identity' under the cloak of 'sexual orientation or to run the risk of such anti-trans media. California cloaked the protections for trans-identified people for many years, yet enumerated gender identity successfully in separate legislation, which passed last year. What the Transgender Law Center found that despite having trans protections under 'sexual orientation,' it found that in cases it still required to take such violations to court to prove that trans-identified people indeed were protected under state law. Winning the Missouri ballot proposal with 'gender identity' in clear language would remove the likelihood of burden of proof that 'sexual orientation' includes trans-identified people.
Another risk of 'gender identity' in the language could be that of a response of a stand-alone 'bathroom bill' not unlike that of Arizona's proposed S.B. 1045. S.B. 1045's language proposes to deny trans-identified people access to public accommodations, specifically restrooms, locker rooms and showers. That said, should Arizona's S.B. 1045 be passed into law there is the risk of such similar legislation being introduced in Missouri prior to Missourians for Equality's 2014 ballot proposal.
Despite any risks in doing so, we should no longer hide 'gender identity' in legislation or ballot measures. Rather than having the possibility of having to go back to court to determine its relevance to the protections under sexual orientation, trans-identified people should be clearly enumerated as a protected class in Missouri, once and for all.
Note of disclosure: The author is actively working with Missourians for Equality, in a coalition arrangement