Finally we get a case that really sounds interesting. Believe it or not, it is all about sex.

Background – A recent decision by the Missouri Court of Appeals in Pittman v. Cook Paper Recycling Corp., turns on the meaning of word “sex ” involving a homosexual who was terminated from his employment with Cook Recycling because he was a gay male. This case was decided based on the meaning of the word “sex” as used in the Missouri Human Rights Act (MHRA). It is widely expected that the recent decision of the Missouri Court of Appeals will be appealed to the Missouri Supreme Court.

Sexual Preference Case Heading To Missouri Supreme Court

This should be a lot of fun watching lawyers and judges wrangling over the meaning of the term “sex.” Sounds exciting! Well, not really. You will be disappointed because the battle is over arcane rules of statutory construction. Very boring.

The case literally depends on the meaning of the term “sex” as used in the Missouri Human Rights Act (MHRA). It is a battle over the statutory construction of the term (“sex”) dealing with a mundane reading of the language in the MHRA.

Still, this case  is one of the most significant Missouri cases in recent years because it is a question of first impression with very broad implications. In addition, most of us do not approach this subject completely free of our own political/personal beliefs. Consequently, it is impossible in a politically charged case like this to determine if one’s personal beliefs will drive the opinion consciously or subconsciously. This case can easily be the depoliticized from personal beliefs by simply following standard rules of statutory construction as discussed below. What also makes this case especially interesting is that the outcome is not at all certain.

The Opinion – The case was assigned to a three-judge panel in the Missouri Court of Appeals for a decision. Judge Welsh wrote the opinion (hereinafter referred to at times as “Opinion”). Judge Clayton, the second member of the panel, concurred only in the result of the Opinion, thereby declining to join in the reasoning of Judge Welsh’s Opinion. Judge Gabbert, the third member of the panel, wrote a very strong dissenting opinion. In other words, the reasoning in the Opinion was supported by only one of the three Judges who were assigned to decide the case.

Okay, it is time to drill down into the Opinion of Judge Welsh. However, before we start this process it is useful to understand the overriding role of statutory construction in this case. While it may seem to casual observers that lawyers and judges, when examining the text of a statute to determine its meaning, seem like monks in an ancient monastery pouring over manuscripts, there is actually a method to our madness. Indeed, there are well established rules of statutory construction, that guide lawyers and judges when they examine a statute to determine its meaning. The classic and defining treatise on the subject of statutory construction is “Sutherland And Statutory Construction” (hereinafter referred to as “Sutherland”). Yes, I have used Sutherland for almost 50 years while construing statutes. I have a recent edition of Sutherland sitting on my desk.

Section 213.055.1(1)(a), of the MHRA makes it unlawful to discharge any individual because of an individual’s “sex.” The term “sex” is an undefined term in the MHRA. The normal rule of statutory construction, almost uniformly followed by the Missouri courts, is that when a term is undefined the courts look to the ordinary dictionary definition. Following this rule, Judge Welsh looked at the first definition of “sex” in Webster’s, Third New International Dictionary (Webster’s), and quickly announced that the term was unambiguous by selectively choosing the first definition, while ignoring the fourth definition, both of which could be applicable.

The full definition in Webster’s is as follows: “(1) one of the two divisions of human beings respectively designated male or female; (2) the sum of the morphological, physiological, and behavioral peculiarities of living beings that subservesbiparental reproduction; (3) the sphere of interpersonal behavior especially between male and female most directly associated with, leading up to, substituting for, or resulting from, genital union; and (4) the phenomena of sexual instincts and their manifestations.” (Emphasis added)

After cherry picking the first definition of “sex” while ignoring the fourth definition Judge Welsh announces that: “The plain language of the Missouri Human Rights Act is clear and unambiguous.” He concludes that the word “sex” covers “…discrimination based upon a person’s gender and has nothing to do with sexual orientation.”

So how do you ignore the fourth part of definition, which states: “(4) the phenomena of sexual instincts and their manifestations” when it would seem to be applicable without offering any explanation or legal authority to explain the choice of one definition over the other? This is inexplicable leaving a huge hole in the reasoning of Judge Welsh. It is very obvious, to even the most causal observer that you cannot state that the statute is unambiguous when there are multiple definitions of “sex” that could reasonably be applied. “Ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses.” (Sutherland, Section 45:2)

After announcing that the definition of “sex” is unambiguous Judge Welsh launches into a discussion of legislative intent in order to bolster his opinion by stating that the meaning is determined by what the legislature meant. Oops! This is where the reasoning of his Opinion completely falls apart because if the meaning is unambiguous you proceed without inquiring into legislative intent. (Sutherland section 45:2)

Judge Welsh argued that legislative intent can be shown because there have been numerous legislative efforts to change the statute to sexual preferences, thus showing legislators intended that the definition of “sex” was gender related. This analysis is pure fantasy law  because a proposed amendment to legislation that was passed years before is not a significant aid in interpreting a statute and is not relevant for the purpose of interpreting the original legislation. (Sutherland 48:18) Rejected or failed bills “…are meaningless and cannot be used as an extrinsic aid.” (Sutherland 48:1) Motives for enacting legislation of the members of the legislature are uniformly disregarded for interpretive purposes unless they are expressed in the statute. (Sutherland 48:17) Since the reasons for adopting legislation will vary from member to member it is impossible to conclude that there is somehow a collective intent of the 197 members of the Missouri General Assembly.

Considering the weakness of the Opinion of Judge Welsh and the importance of this case it would seem that the Missouri Supreme Court would accept this case and issue a new opinion.

So what can you expect? First, no matter how the case is decided, you can expect a complete rewrite of Judge Welsh’s Opinion because it is flawed and incredibly weak. After all, considering the importance of this case, whatever opinion is issued it must maintain a degree of judicial credibility.

You can also expect that the  past will control the future; therefore, the final opinion will consider the ordinary dictionary meaning of the word “sex.” That will leave the court with the conundrum that Judge Welsh was unwilling to face. How you can ignore the fourth definition: (4) the phenomena of sexual instincts and their manifestations” or select one definition over another? To ignore the fourth definition of “sex” seems like an impossible task unless you do back flips based upon your own personal opinion thereby destroying judicial credibility.

The dissent by Judge Gabbert in the Court of Appeals decision provides a very logical interpretation by concluding that the entire definition applies thereby expanding the meaning of gender to cover sex  harassment based  or hostile workplace, citing cases and other legal authority to support this conclusion. Judge Gabbert reasons that since the MHRA is considered remedial and was intended to correct injustices involving sex discrimination the normal rules of statutory construction support giving it a broad interpretation to correct the injustice of firing someone based upon their gender preference.

Judge Gabbert, also notes that when you fire someone because of his or her gender preference you necessarily take into consideration his or her sex. “In other words, a person’s sex is always considered when taking a person’s sexual orientation into account. (E.g., homosexual, heterosexual”. It will be interesting to see how the court handles the logic of this argument. Stay tuned.

Howard Wright © 2015