LANSING – The state legislature is about to roll into the wild west of the legislative session – the lame duck. It’s the period between the November election and the seating of the new legislature in January. In previous years, the state saw lawmakers pass referendum proof emergency manager legislation – after voters resoundingly killed a similar law – and the controversial passage of so-called “right-to-work” legislation.
High on the lame duck agenda this year: finding a funding solution for Michigan’s crumbling roads and amending Michigan’s civil rights act, Elliott-Larsen, to include sexual orientation and gender identity and expression. Republican Gov. Rick Snyder has called road funding a priority, while saying he hopes the legislature will take up amending Elliott-Larsen in the lame duck as well.
But the road to an inclusive Elliott-Larsen is as pothole filled and treacherous as Michigan’s roads.
Where We Are Now
Rep. Tim Greimel (D-Auburn Hills) is leader of the House Democratic Caucus. He tells BTL that he believes the GOP majority will bring legislation to the floor which will amend Elliott-Larsen to include sexual orientation, but not gender identity.
“The latest indication is that they do not want to prohibit discrimination based on gender identity,” Greimel said in a phone interview. He said he also believed the Republicans would include a broad religious exemption which would effectively gut the bill.
But Ari Adler, communications director for Speaker of the House Jase Bolger (R-Marshall), says that’s not exactly accurate.
“With all due respect to Rep. Greimel, he is not involved in the frequent discussions that are occurring around this issue so he’s not the best source of information on what we are discussing. There is no discussion about putting some kind of exemption into Elliott-Larsen regarding religion as that would not be possible,” Adler said in an emailed statement to BTL. “However, we are researching if there is a way we can legislatively protect religious freedom in Michigan the way it is at the federal level. As it stands today, prisoners in Michigan have greater protection for religious freedom than law-abiding citizens who are not incarcerated. As for gender identity, various court cases involving discrimination based on sex have proven that somebody’s gender identity is already covered under existing law, which is why the Speaker has not been inclined to add gender identity specifically to Elliott-Larsen.”
Jim Murray, co-chair of the Competitive Workforce Coalition, a group of Michigan business leaders advocating for amending the state’s civil rights law, said gender identity is unlikely to make the cut as lawmakers crash through the lame duck session.
“The cold hard fact is the votes don’t exist,” Murray, who is also president of AT&T Michigan, said. “I’ve heard from several legislators – from both sides of the aisle – ‘I can support sexual orientation, but I am just not comfortable with transgender protections.'”
“If gender identity or gender expression is removed from the bill, all support from LGBTQ advocacy groups, including Equality Michigan, will be revoked,” said Emily Dievendorf, executive director of Equality Michigan. “We have no intention of leaving the transgender community behind. The transgender community is the most vulnerable part of the larger LGBTQ community and finding safety and fairness at every level and in every sphere for the transgender community must be as much a priority for the movement as anything. ”
For his part, Greimel, the Democratic leader in the House, says the majority of the caucus will oppose a non-inclusive bill.
Kary Moss, executive director of ACLU of Michigan, said “a lot can happen in six weeks,” and believes that Murray’s head count is off.
“We have many reasons to be optimistic,” Moss said. “There is a game plan and a lot of resources are being mobilized.”
Shifting Political Winds
The long road to amending Elliott-Larsen begins in 1981, when then Republican lawmaker Jim Dressel of Holland introduced the first legislation to amend the state’s civil rights act. He was promptly shown the door by voters. Since then, various lawmakers, always Democrats, have introduced legislation to extend protections in housing and employment to the LGBT community. But it has never gotten anywhere.
This year was supposed to be different. Rep. Frank Foster, a northern Michigan Republican, made it clear he would introduce legislation to amend the law and extend protections to the entire community.
With a Republican leading the charge in a Republican controlled legislature, a new coalition of business leaders from across the state calling for the move and an extensive report from the Michigan Department of Civil Rights, amending the law seemed a likely thing.
That was before Foster was taken out by a conservative Christian in a primary challenge in August. That was before voters re-elected Gov. Snyder and installed several anti-gay extreme conservatives in the incoming legislature including Gary Glenn, the former president of the American Family Association of Michigan.
While Snyder has said he would like the legislature to take up amending Elliott-Larsen in the lame duck session, his communications team was unwilling to discuss the Republican governor’s stance on inclusion of gender identity in any legislation.
In an extensive back and forth email exchange with Snyder spokesman Dave Murray, the governor’s office was unwilling to answer two direct questions from BTL.
First, “Does the governor believe the transgender community is discriminated against, yes or no?” The second, “Does the governor believe that gender identity should be included in any legislation to expand Elliott-Larsen, yes or no?”
“Gov. Snyder has said that he believes discrimination is wrong, period,” Murray said in his email responses, ignoring the specific questions. “He’s looking forward to discussing potential changes to the Elliott-Larson Civil Rights Act with our partners in the Legislature.”
Trans Community Nervous
With gender identity on the proverbial chopping block, the transgender community in Michigan is feeling particularly vulnerable.
“I’m not at all sure we can hold the GOP caucus to pass an inclusive bill,” says Amy Hunter, a transgender activist based in Kalamazoo. She is also president of the Kalamazoo Alliance for Equality. “In which case, it would be a mistake to pass a half bill. History is replete with examples where one group was left out. It then takes years, if ever, for lawmakers to come back and add the transgender community.”
“It leaves the group most susceptible to discrimination stranded,” she added.
And she notes excluding gender identity and expression, as the political tea leaves are indicating, harms the larger LGB movement as well.
“Gender identity and expression don’t just cover trans people,” she notes. “It helps the LGBT community combat perceived sexual orientation. But if you leave it out, it makes that more difficult.”
Dievendorf and Moss also note that the logic being used by the Speaker is flawed.
The EEOC ruling cited by Adler only applies to employment. Amending Elliott Larsen would extend non-discrimination protections to housing and public accommodations as well. And leaving the cases up to the whim of the courts can add years to the fight to remedy discrimination situations, and relies on who is sitting on the bench, both argue.
The Hail Mary That Could Save An Inclusive Elliott Larsen
Despite the gathering storm clouds and what appears to be a rubble-strewn path forward, at least one veteran political strategist and activist says there is a possibility of a last minute save for an inclusive amendment to the civil rights act.
In this scenario, the activist who is not involved in current negotiations or strategy sessions, says the Democratic caucus holds out for an inclusive Elliott-Larsen bill and trades votes to support a legislative move to fund road repairs. In that scenario, the GOP is going to be looking for votes on the Democratic side of the aisle in order to raise revenues to pay for the governor’s $1 billion funding request. Democrats could trade yes votes to raise revenue for a slim majority to pass an inclusive Elliott-Larsen Civil Rights Act amendment.
With Snyder pushing hard for a road funding solution to be found before January, such a horse trade might be more likely.
Sitting on the cusp of passing such an amendment for the first time in Michigan history, ACLU’s Moss says now is the time for equality activists to pick up their phones, hit their emails and join the Michigan Freedom coalition website to tell lawmakers they support an inclusive civil rights act.
Moss has been putting the full court press on this. On Friday during her organization’s annual dinner, she pushed over 500 supporters to act. During that event, Moss had attendees fill out hundreds of postcards supporting amending the law – postcards that will soon be delivered to the legislature and the governor. But that alone is not enough, she says.
“Now is the time for the governor and the Speaker to hear from everyone that cares about equality,” Moss said.