Michigan could be headed for a showdown over its recent decision to extend nondiscrimination protections to queer and trans people.
In a 5-to-0 verdict, the state’s Civil Rights Commission voted on Monday to interpret existing civil rights law to include characteristics like sexual orientation and gender identity. The Elliott-Larsen Civil Rights Act of 1976 prohibits bias on the basis of race, religion, national origin, marital status, age, sex, height, or weight in housing, employment, and public accommodations.
Michigan’s LGBTQ community has fought to be included in the legislation since it was first introduced in 1973.
But an attempt to amend the decades-old civil rights legislation to be inclusive of queer and trans identities has stalled in the Republican-controlled Michigan Legislature. The most recent attempt to do so was 2014, when a nondiscrimination bill was paired with a “religious freedom” law which would have allowed people of faith to deny services to LGBTQ people based on religious beliefs.
Local advocacy groups say that Monday’s decision is an important stopgap until state lawmakers can pass comprehensive legislation.
“[T]he Commission’s action today has the practical effect of providing LGBTQ victims of discrimination with an opportunity to have their cases heard and to seek redress for the anti-LGBTQ discrimination that is all too common in our state,” said Equality Michigan Executive Director Stephanie White in a statement.
Freedom for All Americans CEO Masen Davis called it a “welcome and important step forward for Michigan.”
“Today’s vote makes it just a little easier for LGBTQ people in the Great Lakes State to live and work with dignity and respect,” he said in a press release. “But our work isn’t finishedwe must continue working together to update Michigan’s state law so that all LGBTQ residents are fully and explicitly protected from discrimination.”
Although the Michigan Department of Civil Rights claimed it will begin assessing bias complaints lobbied on behalf of queer and trans people as soon as Tuesday, that decision may not go into effect.
Conservative groups are meeting the very same day to determine whether they will seek to overturn the ruling in court.
Attorney David Kallman with the Great Lakes Justice Center, a right-wing legal group based in Lansing, called the Commission’s ruling an “arrogant abuse of power” and a “clear violation of the separation of powers” between branches of state government. He said the decision “literally boggles [his] mind.”
“The Civil Rights Commission is not the state Legislature,” Kallman told the Associated Press. “They do not have the authority to change state law, which is what they’re doing here.”
“This isn’t just interpreting some word,” he added. “This is adding new categories.”
If the self-described “religious liberty” law firm does not seek a legal injunction against this week’s verdict, it’s likely to take the matter to Attorney General Bill Schuette. As the Detroit Free Press previously reported, his office told the Commission last year it didn’t have the purview to reinterpret 42-year-old legislation.
“Should the commission issue a ruling contrary to the Attorney General, the commission would give up its governmental immunity and would be subject to a lawsuit,” said Assistant Attorney General Ron Robinson in September.
Robinson added that only state lawmakers had the power to write law.
But Dan Levy, director of law and policy for the Michigan Department of Civil Rights, said the Commission’s decision wasn’t intended to usurp the responsibilities of the legislature. It was about giving LGBTQ people the opportunity to seek redress from harm.
“We’re letting them into the judicial system, into the system of justice, and now they’re going to have to make their case,” he told the Free Press.
Should the debate over Michigan’s nondiscrimination laws go to court, the law may be on the side of the Commission. In May, the 6th U.S. Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 outlaws workplace discrimination on the basis of gender identity.
The case determined whether a transgender woman who was fired from her job at a funeral home after she began transitioning had the right to sue. The appeals court found that she did.
Although the 6th Circuit is based in Manhattan, Michigan falls under the purview of its decisions.
But in a statement, Human Rights Campaign Legal Director Sarah Warbelow claimed the ruling in Michigan is “consistent with federal courts across the country.” Additionally, 20 states (and D.C.) have passed fully LGBTQ-inclusive nondiscrimination laws at the statewide level.
Despite the challenges that lie ahead, LGBTQ advocates in Michigan celebrated the Commission’s ruling as a “game-changer.”
“There are over 300,000 individuals with different sexual or gender affiliations who have felt that … they had no place to go if they were discriminated [against],” said Michigan Department of Civil Rights Director Augustin V. Arbulu in an interview with the AP. “Now they have a place to go.”
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