UPDATE (7/24/2018): Since this story was originally published, the Michigan Civil Rights Commission claimed it will disregard Attorney General Bill Schuette’s legal opinion on whether LGBTQ people are protected under state nondiscrimination laws.
Officials claim the state agency is not subject to the authority of the attorney general’s office.
“The Michigan Civil Rights Commission is an independent, constitutionally created, and established body,” Michigan Department of Civil Rights Director Agustin V. Arbulu claimed in a statement.
The commission will continue to hear discrimination complains on the basis of sexual orientation and gender identity.
Michigan’s Attorney General claimed the state’s civil rights laws do not cover LGBTQ people, in a legal opinion issued last week.
In a 19-page statement, AG Bill Schuette claimed that a May decision from the Michigan Civil Rights Commission to extend nondiscrimination protections to queer and trans residents is “invalid.” He argued those actions “[conflict] with the original intent of the Legislature as expressed in the plain language” of the Elliott Larsen Civil Rights Act, which bans discrimination based on characteristics like race, religion, and sex.
The 1976 law does not specifically mention sexual orientation or gender identity.
Schuette claimed that government agencies like the civil rights commission don’t have the authority to “change the statute or to enforce the statute in a way that conflicts with the law’s plain meaning” because they are not law-making bodies. If LGBTQ inclusive protections were to be added to the Civil Rights Act, that decision must be made by the Michigan Legislature.
“Michigan’s Constitution entrusts the Legislature, and not executive agencies or commissions, with the authority to change, extend, or narrow statutes,” Schuette said.
Because legal opinions from the attorney general’s office are binding without a court decision reversing them, Schuette’s decision effectively overturns a two-month-old declaration from the civil rights commission that it would begin taking anti-LGBTQ discrimination complaints related to areas of housing, employment, and public accommodations.
The Michigan Civil Rights Commission weighed in on the matter upon request from Equality Michigan. The LGBTQ advocacy group urged the government agency to offer its guidance as to whether the Civil Rights Act’s definition of “sex” included sexual orientation and gender identity.
But just weeks after the commission ruled that the state’s estimated 350,000 LGBTQ citizens are entitled to equal protection under the law, conservative lawmakers in the Michigan Legislature struck back. On May 29, Senate Majority Leader Arlan Meekhof and House Speaker Tom Leonard filed a request with Schuette urging the attorney general to roll back the civil rights body’s findings.
In a letter, the Republicans claimed the commission’s decision “[usurped] the Legislature’s authority by attempting to amend state law under the guise of an interpretive statement.”
Supporters of the rollback say it’s not about whether or not LGBTQs deserve basic human rights but a matter of procedure. David Kallman, a litigator with the right-wing Great Lakes Justice Center in Lansing, said Schuette’s opinion “upheld the rule of law and upheld the separation of powers between executive and legislative branches.”
“I understand people are upset and up in arms over this issue, but that’s not what’s driving the opinion,” Kallman told The Detroit News. “It’s a good government, constitutional issue.”
LGBTQ advocates disagreed. They felt the commission’s decision was necessary to ensure that queer and trans Michiganders had a formal process to report discrimination after numerous attempts to update the Civil Rights Act through the legislature have stalled due to conservative opposition.
In a statement, Equality Michigan Executive Director Stephanie White called Schuette’s opinion an “overreach [that] cuts at the commission’s core constitutional authority, which should concern everyone.”
Meanwhile, Democratic State Rep. Jeremy Moss claimed the decision would “drag [Michigan] into the darkness of the past.”
“While Bill Schuette attempts to trample on the LGBTQ community in an effort to appeal to an extreme fringe in an election year, I’m confident that progress will continue to march forward without him,” Moss wrote in a press release. “It’s not a matter of ‘if’ we expand the Elliott-Larsen Civil Rights Act, but ‘when.'”
The lawmaker added Schuette “will be remembered…as an antagonist on the wrong side of history.”
Michigan is currently one of 28 states where it’s legal to deny housing or employment to LGBTQ people based on their identity. Although Moss claimed nondiscrimination protections are an inevitability in the Wolverine State, the issue has faced a stalemate in a legislature where 60 percent of seats are held by Republicans.
Conservatives have insisted on countering LGBTQ civil rights with legislation allowing people of faith to discriminate against queer and trans individuals based on their beliefs. Former House Speaker Jase Bolger claimed in 2014 that he could not offer his support to any update of the Civil Rights Act without passing a so-called “religious freedom” bill similar to those enacted in Mississippi and Indiana.
Bolger claimed the two bills “would achieve the necessary appropriate balance in Michigan.”
But while the Michigan Legislature awaits further debate over the issue of LGBTQ rights, Department of Civil Rights Director Agustin Arbulu claimed the agency would “continue taking and processing complaints” but would refrain from investigation “until after the commission provides us with direction.”
The Michigan Civil Rights Commission is expected to meet today.
Since the civil rights body extended nondiscrimination protections to queer and trans residents earlier this year, eight LGBTQ people have reportedly come forward to allege bias in their place of employment or other areas of public accommodation. The agency has already begun investigating two of those complaints.