2020 Initiative to Amend Elliott-Larsen: Key Community Members Weigh Challenges

The History
Five years ago, a ballot committee named Fair Michigan and headed by then-attorney Dana Nessel sought to amend Michigan's Constitution to ensure the equal rights of LGBTQ people and women. Then, just as now, there was wide agreement among members of the LGBTQ community, their allies and a large segment of the voting public that discrimination based on sexual orientation and gender identity or expression is wrong. Disagreement arose around how to achieve equality.
A number of editorials addressing the issue appeared in Between The Lines at the time, including one by publisher Susan Horowitz that sounded the alarm regarding the feasibility of such a ballot initiative, as well as the potential harm to the community that the process itself could incur. That the input of local LGBTQ leaders and organizations had not been solicited was a sticking point for many, too. In the end, the initiative lacked sufficient support of the business community to bring the proposed amendment to the ballot, though some believed it had to do with the "infighting" of the LGBTQ community as well.
Launched in January, Fair and Equal Michigan has a similar name and goal to Fair Michigan; however, there are key differences. This time, the ballot initiative seeks to amend the Elliott-Larsen Civil Rights Act to include sexual orientation and gender identity or expression as protected classes.
The organization boasts an impressive roster of LGBTQ leaders and activists, not to mention the support of several major businesses and more than a few notable Republicans.
But has the appetite of the LGBTQ community at large changed to support a potential vote on civil rights at the ballot box, or do the same arguments made in 2015 still hold true? And are there new reasons for caution? After another five years of logjam in the state Legislature as it relates to amending ELCRA, BTL found the opinions of local LGBTQ leaders vary widely on the subject. In six interviews presented in two articles — one interviewing supporters of the initiative and one with arguments against it — one thing's for certain: passions flare on both sides.
BTL also spoke with Fair and Equal Michigan President Trevor Thomas.



'What Do We Have to Lose?'

A Winning Strategy
Michelle Fox-Phillips, the executive director of Gender-identity Network Alliance, is an enthusiastic supporter of the Fair and Equal Michigan ballot initiative. And she's the first to acknowledge her views have changed since extending civil rights to LGBTQ Michiganders via citizens' initiative was first proposed in 2015. At the time, Fox-Phillips and activist and politician Char Davenport wrote an impassioned letter on behalf of the transgender community that was published in Between The Lines that was ostensibly a message to Dana Nessel, who, much to their chagrin, had not sought the input of trans Michiganders. In the letter, they expressed the belief that the ballot initiative should not go forward because of the very real danger that anti-trans backlash might arise, the feeling that civil rights should not be "subject to the capriciousness of a largely uninformed or worse, misinformed public," and other reasons.
"To really be honest, I think the time is right," Fox-Phillips said recently, when asked how she felt about Fair and Equal Michigan's efforts. "It's an important election. If you remember when [George W.] Bush was up for reelection, part of the Republican strategy was to get these [anti-] marriage amendments in different states on the ballot and that'll get the Republicans to come out, or the Evangelicals to come out and vote for him. And I think they might be using the same strategy this year," she said, suggesting that strong anti-Trump sentiment might drive Democrats and other pro-equality voters to the polls who would favor the ballot initiative.
In terms of the backlash against the LGBTQ community that could arise as a result of this campaign, Fox-Phillips rightly pointed out that harassment and violence against trans people, in particular, has increased in recent years anyway.
"The trans community's gonna be the target during this campaign," Fox-Phillips said plainly. "And it's gonna be fear-based. Pretty much the gay community is more accepted in the wider, cisgender community. Trans community — we're getting there. One day at a time."
Fox-Phillips expressed interest in being part of Fair and Equal Michigan's honorary leadership committee and said she's impressed with the business coalition which she expects will be a significant source of the necessary funding. She said she plans to help in any way she can, including going door-to-door.
"I think this is the time," she said hopefully. "I think we can do it. I think we can push it through."

Lived Experience
Jey'nce Poindexter is the transgender victims advocate for Equality Michigan and vice president of the Trans Sistas of Color Project, so she knows a thing or two about threats to the trans community; but, as she says, "I don't cower easily." She said she's tired of people who suggest she should wait for a more favorable Legislature to amend the Elliott-Larsen Civil Rights Act or any other reason not to move forward with a bold approach.
Poindexter is also one of four co-chairs of Fair and Equal Michigan. In response to an argument made at a strategy meeting for waiting on the state Legislature, Poindexter recounted her frustration.
"I was blown away by it," she recalled. "And my response to it was, what are we waiting for? What exactly are we waiting on? If it has been 40 years and there has been no more movement than the initial kind of presentation, then why aren't we figuring out other ways to push? Why aren't we bringing new, fresh, energy and vantage points and ideas to help push it now and not wait another 40 years?"
Poindexter acknowledged the possibility of a harsh, negative campaign, one that would likely target the trans community, as Fox-Phillips said.
"There might be some harsh comments," she said. "There might be whatever reaction. But what do we have to lose, besides our lives, which we're already losing? Especially black trans women. What do we have to lose? So it's much like the question that Trump presented to the American people when he was running for office: 'Hey look, vote for me. What do you have to lose, when you already have it that bad?'" she said.
Instead of concern over the general public voting on the civil rights of a minority group, Poindexter welcomes it.
"I think that civil rights should be on the ballot because it really is a civil rights problem. I work every single day and contribute to this society," she said. "I pay taxes. In my sense, how do I pay into a system that doesn't protect me, and that I'm supposed to believe that has no interest in protecting me, ever?"
But Poindexter isn't just putting forth arguments in favor. Like Fox-Phillips, she plans to take action. For Poindexter, education and activism are woven into the fabric of who she is.
"Every part of my work, every part of my advocacy and rendering service, and traveling even nationally, is to push, is to transform … through education and shared experience that touches the heart and soul and that makes it human," she said.
As a collective, the Trans Sistas of Color Project knows from experience the reality of violence and murder of trans women of color — and the reality that those crimes are underreported.
"That is why we support it," Poindexter said. "It's like I said earlier, what are we waiting for? Are we waiting for someone to be more mutilated, or more evicted, or more fired illegally, or picked on, or harassed to the point where they commit suicide? What are we waiting for?"

The Long View
Historian Tim Rezloff said he won't advise either way on amending ELCRA via ballot initiative. However, in 2016 he did pen an article to refute claims that pro-LGBTQ efforts always lose at the ballot box. In it, he called the history of past referendum battles "complicated, and perhaps promising," then enumerated the "mixed success" of such campaigns in Michigan. Retzloff concluded with the following: "History shows that LGBT rights do not always lose at the ballot box. History also shows that any push forward — win or lose — is never wasted."
Today, asked whether a push forward is "never wasted" if it results in ugly, negative backlash toward an already vulnerable population, Retzloff pointed to examples in the past in which that same argument was made. His message was that fear alone shouldn't hold us back.
"That was the argument against pushing for marriage," Retzloff countered. "Most of the leading national and state organizations in the early 2000s — and certainly in 1996 when DOMA was enacted, and then in 2004 when Michigan passed its own 'mini DOMA' — there was a lot of anxiety and concern about, 'This is the wrong time to push this issue,'" he said, referring to the Defense of Marriage Act.
Retzloff talked about other changes over the past five years that might make the environment more or less favorable to the success of a ballot initiative, and how an argument could be made either way for the kind of voters it would draw to the polls.
"One of the things we know, one the things that's changing over time, is the more non-LGBTQ people know someone who is LGBTQ, the more favorable they are, and the more understanding they are, to our concerns and issues," he said.
Finally, Retzloff suggested that with the Legislature stalled for the past 40 years, it may be time for citizens to take action. He sounded impressed with what he called the grassroots push and strong coalition he sees in Fair and Equal Michigan.
"My perspective is that it has been 30-some years since House Bill 5000 was at the top of the agenda, and it makes sense to push this," Retzloff said. "When people are losing their jobs and losing their homes and losing their lives because people don't have their equal protections, then it's time to change the law. Hopefully, people have learned what works and what doesn't work and how to get something passed. If the majority of Michiganders — and I understand the majority of Michiganders favor this — and yet the Legislature isn't enacting it, then that's why we have the ballot initiative process."



'There's a Tremendous Amount to Lose'

Effect on the Trans Community
Amy Hunter is not one to mince words. When asked for her reaction upon hearing of Fair and Equal Michigan's ballot initiative, she replied, "To be brutally honest, it was like, 'oh no, not again' — and you can quote that."
Hunter was referring to the short-lived attempt to secure LGBTQ rights in Michigan via a citizen-led initiative made five years ago. To be clear, while Hunter is the executive director of the LGBTQ community center OutFront Kalamazoo, her opinions are hers alone. "That doesn't mean our members shouldn't be well-informed," she said.
Five years ago, Hunter was developing the transgender advocacy project for the ACLU of Michigan, which she later scaled up to the national level.
"My opinion is well-considered on this," she stated. "It's not something that I just arrived at because I don't like civil rights being done as ballot initiatives."
She criticized what appear to be highly favorable polling numbers, but that she considers deceptive. This very issue — polling versus modeling — arose in 2015, when Freedom for All Americans conducted a modeling analysis on the public's view of that initiative, which had sought to ensure LGBTQ rights by amending the state Constitution. Among other things, modeling requires delivering the opposition's message to those being questioned in the way it is expected to be delivered — like TV ads featuring men in dresses entering women's bathrooms for anti-transgender equality bathroom bills.
At the time, Freedom for All American's findings were explained in a Between The Lines article by publisher Jan Stevenson. Support plummeted when the opposing message was introduced. Glengariff Group was the polling firm responsible for the first round of highly favorable polls cited by the committees of both the earlier and current initiatives.
"One of the deep concerns that came out of what I was doing, both as a transgender person and a person that was developing an advocacy program with the ACLU, was the amount of vitriol that gets spewed all over the trans community by the opposition and, frankly, by some of the folks who should be our allies," Hunter said.
She spoke of the PTSD and the stigma that transgender people normally experience, and she added that "throwing the trans community into the cauldron of a political campaign" makes the community even more susceptible, "because the opposition will stop at nothing."
Hunter said she's old enough to withstand the negativity, but she's concerned about young people who are more vulnerable.
"A well-intentioned but ill-conceived effort is put out there that literally paints a target on their back, and the chances of them surviving that political discourse unscathed is literally nonexistent," she said. "There's a tremendous amount to lose."

History and Context
Steph White, a former executive director of Equality Michigan, is of similar mind to Hunter. For context, White was hired by EQMI shortly before the first ballot committee came together five years ago. She expressed her opposition in an editorial, in which she states, "there are no quick and easy paths, only long, hard work." Four years later, effective Jan. 2019, The organization's boards unanimously decided not to renew White's contract. Erin Knott, the organization's political director at that time, stepped into the role of executive director.
White doesn't think the chances of a ballot initiative's success are any better today. In fact, she feels the outlook is worse.
First, she cited the national environment and mentioned the number of anti-trans bills that have been introduced in state Houses. Second, the Michigan Court of Appeals recently ruled that LGBTQ people are not protected under the state's hate crime law. Then there is the pending litigation in the U.S. Supreme Court involving Aimee Stephens and the definition of "sex," which goes to the heart of Fair and Equal Michigan's initiative. "That is most likely to be a loss for our community as well," White predicts. "I don't think anybody who's seriously looked at the court and listened to the arguments has any real hope that we will prevail in that case."
Taken together, White sees the potential for even more negative publicity and negative outcomes.
White said that many fail to realize that the Michigan Civil Rights Commission is currently investigating cases of discrimination brought by LGBTQ people based on the Commission's interpretative definition of "sex." Hunter mentioned this, too, and both agree upon what's at stake.
"If we put this up to a popular referendum, we risk losing all of that, essentially," Hunter said.
White, like Hunter, also takes issue with the voting public making decisions on civil rights.
"We shouldn't ask the public to vote on whether we're full humans or not," she said. "That's not proper … There's a reason why everybody in the [LGBTQ] movement is pretty much universally against proactively putting civil rights on the ballot. None of the national groups are coming out to support this; they know it's a bad decision. And I think it's unfair for Michigan to back our allies like HRC and other national groups into a corner. This is not what leadership is."
Another deeply concerned leader is Roz Keith. The mother of a transgender son, Keith is the founder and executive director of Stand with Trans, a support and advocacy organization for families with transgender kids.
"I don't think that anyone's rights, let alone my son's rights, should be voted on by my neighbors," Keith said. "I think we have elected officials in place for a reason."

Lobbying and Education
Keith, Hunter and White all emphasize lobbying and education as their preferred method of effecting change in terms of securing equal rights for LGBTQ Michiganders.
"Most folks don't know the difference between sex and gender," Keith said, something she knows from years of experience interacting with parents whose kids are coming out. "I don't think that buckets of money should be spent to gather signatures to get [the initiative] on the ballot when those resources perhaps could be spent to lobby and have conversations with elected officials and talk about why this is important."
What both Hunter and White have learned from past campaigns is that victory requires vastly outspending the opposition, due to the power of negative messaging. Both cited a figure of $12 to every $1 of opposition. And even then, success is not assured. Instead, White laid out a plan for amending ELCRA via the state Legislature, which might only require securing a Democratic majority in one of the Houses, assuming there is a pro-equality governor.
There's no guarantee. However, House Speaker Lee Chatfield and Senate Leader Mike Shirkey, both of whom have expressed no interest in extending LGBTQ rights — or perhaps only if a religious exemption is on the table, which is a nonstarter for those who believe in full equality — are term-limited in 2020 and 2022, respectively. Redistricting holds promise for Democrats, too. White forecasts that "there are Republicans who would not fight against this going to a floor vote as much as the leaders are currently fighting against this."
"I hear a lot of people say, 'We can't sit back and be passive and wait,'" White said. "But passive and waiting is not the only option to shooting ourselves in the foot by trying to go to the ballot."
When asked who should take up the mantle of lobbying, White replied, "It would be, presumably, Equality Michigan's job to do this, to lead this. Their political arm."
As stated earlier, EQMI currently lacks a dedicated political director. When it was suggested that the organization hasn't had the funds for such a wide-scale lobbying effort, White was blunt.
"Trevor Thomas is the chair of the C4 of the Equality Michigan Action Network, and to be able to pull together the political clout of the businesses in our state — then he could do it that way," she said. "The resources are obviously available, [it's] just how they choose to do it."
What White seemed to imply is that Thomas could better serve the LGBTQ community by using his talents to benefit Equality Michigan's advocacy nonprofit rather than focusing on the new ballot committee, of which he is president.

To Sign or Not to Sign
Neither Hunter nor White plan to sign the petition. When BTL spoke with Hunter, she had already passed up an opportunity to do so. Then she went a step further, musing about a "decline-to-sign" campaign.
"Decline-to-sign campaigns happen all the time," Hunter said. "It is a tried-and-true tactic. It takes energizing people; it takes money to get the word out."
She said she doesn't yet know if the organizational, institutional or personal capacity to mount a decline-to-sign campaign exists, "but if there were, I personally would put my effort into it."
In this way, White and Hunter both feel that it's not as if "the train has left the station." They feel that declining to sign the petition and thereby avoiding a campaign and vote is a matter of protecting the LGBTQ community from harm, not being disloyal.
"If the LGBTQ community has any hope or promise for the rest of humanity, [it's] that we teach people to love yourself and be yourself, [and that] includes when I disagree on a political decision," White concluded. "I love my community so much I'm willing to say, 'Let's not do this thing that everyone's getting excited about, because it's hurtful.'" Lastly, we asked Keith whether she planned to sign the petition. She sighed.
"I don't know," she said. "Yes, people are dying, the suicide rate is sky high, the murder of trans women of color is unacceptable — [yet] I don't think that signing a petition and getting this on the ballot is going to change those things. I just hope that one way or another, changes can be made so that everyone here can have the protections that they need. And we can just go about our business."

Editor's note: The interview with Amy Hunter was conducted weeks before publication. She said that she no longer believes it is possible to mount a "decline-to-sign" campaign, nor would she support one. Instead, she supports harm mitigation: spreading positive messages about the trans community to the public to keep the most at-risk community safe via cultural narrative shaping. 


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