JEFFERSON CITY, Mo. — A St. Charles County lawmaker wants to create a legal definition of sex so school districts could bar transgender students from using bathrooms and locker rooms that match their gender identities.

A bill filed by state Sen. Adam Schnelting, R-St. Charles, would define “sex” to mean “the two categories of humans, male and female, into which individuals are divided based on an individual’s reproductive biology at birth and the individual’s genome.”

Schnelting said the definition would “update” the Missouri Human Rights Act and protect school districts from legal challenges if they want to require transgender students to use multi-stall facilities designated for their sex assigned at birth.

The proposal seeks to work around a 2019 Missouri Supreme Court decision, when judges sided with a transgender man who sued the Blue Springs School District for sex discrimination after the district denied him access to boys’ restrooms and locker rooms.

The decision indicated the term “sex” is not limited to biological sex alone. And the case, currently on its second appeal to the state Supreme Court, could decide whether the Missouri Human Rights Act protects transgender students from discrimination based on their “legal sex,” reflected on updated birth certificates, or their sex assigned at birth.

“With the court’s precedent that has been set, our districts are fighting a losing battle,” Schnelting said at a Feb. 11 hearing. “They’re facing potential fines and lawsuits.”

In an email to the Post-Dispatch on Monday, Schnelting said he filed the bill with Francis Howell School District in mind. He wanted to allow the district, which is in his district, and others to pass single-sex bathroom policies “without fear of frivolous lawsuits.”

The Francis Howell Board of Education proposed a restroom and locker room policy in 2023. But the policy never received a final vote.

Parents of transgender students threatened to sue. Leadership on the conservative-majority board have said that while they may not personally disagree with the policy, they were unwilling to risk the cost of legal challenges — ones they may lose as a result of the Blue Springs precedent.

“While the case is currently on appeal to the Missouri Supreme Court, we cannot, as stewards of taxpayer funds, expose district funds to pay punitive damages, compensatory damages, and attorney fees to families who may engage in litigation,” Board President Adam Bertrand and Vice President Randy Cook said in a statement at the time.

Cook, along with Board Treasurer Jan Puszkar, testified in favor of Schnelting’s bill.

Francis Howell’s proposed bathroom and locker room policy

Puszkar has repeatedly tried to bring Francis Howell’s bathroom policy back for a final vote without the support of fellow board members. She originally introduced the policy in October 2023.

Francis Howell students are “afraid of retribution,” Puszkar said, such as bullying from their peers or administrators, if they speak out against transgender students using restrooms that aligned with their gender.

“There’s no reason on this earth that a young male should be allowed in any female locker room for anything,” Puszkar said.

Cook, in his testimony, said there was “much less confusion” over the definition of sex at the time it was added to the Missouri Human Rights Act as a protected class in 1978. Courts today are “ignoring plain old common sense,” he said.

“The General Assembly has an opportunity here to correct this,” Cook continued. “I urge the body to vote for Senate Bill 76 and move it forward without delay.”

Advocates of LGBTQ+ rights derided the bill.

Katy Erker-Lynch, executive director of advocacy group PROMO Missouri, said lawmakers were “weaponizing” Missouri’s human rights statute.

“Senate Bill 76 is not only a dangerous bathroom ban, it’s an attempt to legalize discrimination based on sexual orientation and gender identity and to fully erase transgender, nonbinary, intersex, and two-spirit people from the state,” Erker-Lynch said in a statement to the Post-Dispatch.

Attorney Sarah Jane Hunt, a managing partner of Kennedy Hunt P.C. in Clayton, said the bill would not change legal precedent established in the Blue Springs case.

It’d also violate broader protections against discrimination established by the U.S. Supreme Court case Bostock v. Clayton County, Hunt said.

The 2020 employment discrimination case held it was “impossible” to discriminate against an individual for being gay or transgender without discriminating against that individual based on sex.

“What it does is try to define sex discrimination in a way that both the courts have already rejected and actually may constitute discrimination in and of itself,” Hunt said. “It is going to encourage more litigation — not less.”

The legislation is Senate Bill 76.

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