Commentary: Can And Should We Fight For LGBT Civil Rights At The Ballot Box?

Susan Horowitz
By | 2015-12-04T09:00:00+00:00 December 4th, 2015|Michigan, News|


An Oct. 30 announcement by a new ballot question committee, Fair Michigan – formed by attorney Dana Nessel, seeks to put LGBT civil rights to a popular vote in 2016. It has caused controversy and a fair amount of confusion and anger among the state’s LGBT leaders, allies and the public. And on Monday, Dec. 7 a public conversation will take place to try and address some serious questions that deserve answers.

Everyone agrees they want to see Michigan’s civil rights law amended to include protections for sexual orientation and gender identity and that’s where the agreement begins and ends. How to achieve this, in a state where the political climate offers zero chance of a legislative solution this year, has been the topic of much debate even before the announcement to move ahead with a ballot initiative was made.

Although many are attracted to a ballot initiative route, there are serious unanswered questions about its feasibility and likelihood of success. Supporters and non-supporters have offered a glimpse into the debate heating up across social media since the announcement. History – including the most recent election day in Houston, Texas on Nov. 3 – points to a challenging and expensive battle for any city or state considering the ballot box. And the cost is not being measured in dollars alone, which some experts estimate will take at least $12 million and perhaps double that in a presidential election year.

The cost is also being assessed for the potential rise in violence; concerns about the time required to educate a distracted, uninformed public being insufficient; and the history of voting in our own state on LGBT issues, to name just a few of the many concerns. All of us should want answers to the serious questions being raised.

In an effort to sell the ballot strategy, Fair Michigan has floated an optimistic poll showing what might seem like an easy win next November. But many political experts in the state and around the country say poll numbers can be highly misleading. Once you sit down and apply what professional pollsters call modeling, the positive polling numbers begin to plummet as you introduce anti-gay and anti-trans messages (like “men in women’s bathrooms”). With opposition messaging taken into account, we start to see the real challenges a campaign like the one Fair Michigan is undertaking will require.

Given the enormity of the task at hand, it would seem critical to bring all the stakeholders to the table as an essential first step. Taking this fight to a popular vote would seem to require all hands on deck and yet so far, exactly the opposite has happened.
The latest round of community debate has left many polarized.

Since the Oct. 30 announcement, leaders and activists in the LGBT community have been asking a lot of questions and not getting many answers from Fair Michigan. That could change on Dec. 7 when the Fair Michigan team meets publicly for the first time with members of the LGBT community to discuss the issues being raised.

Recent History

During much of 2013 and 2014, many organizations and businesses worked tirelessly to push a bill through the state Legislature amending Elliot-Larsen, the state civil rights act, to include sexual orientation and gender identity protections. Hope that a 2014 lame-duck session could deliver a bill that Gov. Snyder could sign into law was dashed. At the heart of the battle: Republican legislators wanted to drop gender identity protections. Most in the LGBT community said no to any form of incrementalism and stood unified, looking to a future effort where legislation would be fully inclusive.

In his 2015 State of the State address, Gov. Snyder said that it is time to update Elliott-Larsen so that Michigan can be a competitive destination for top talent and maintain more college graduates who may be leaving the state to pursue careers in more inclusive areas. However, little hope is being placed on the current Legislature moving forward on his request.

Stephanie White, executive director of Equality Michigan, took the helm of the organization this autumn. White arrived in the wake of the failed legislative attempt. In an interview with BTL shortly after her arrival, White said that she saw a willingness between LGBT organizations to work together on issues that affect the community, but she also noted that the LGBT community is not entirely on the same page.

“We have to acknowledge that the whole LGBT community is still learning and growing,” she said in the interview. “I think there are people all over our state that don’t get it; don’t understand why it’s not OK to leave some members of our community out, or why gender identity discrimination really is part of sexual orientation discrimination.”

White penned an op-ed, published in BTL the day before the ballot initiative was launched. In it she describes how a multi-year process would include making more friends in Lansing, strengthening the skills and capacity of organizations all across the LGBT movement to work smarter and in coordination towards a common goal, educating and engaging allies, and correcting the fears and misconceptions that the general public now holds thanks to anti-trans messaging that ramped up in Houston.

The next day, Oct. 30, co-chairs of Fair Michigan Dana Nessel and Richard McLellan announced the committee to collect signatures to get the measure on the 2016 ballot. Then 17 LGBT organizations and leaders in the state issued a formal statement calling for a thoughtful approach to updating the state’s civil rights act. The letter states that the LGBT community in Michigan stands united in its support of advancing inclusive and comprehensive nondiscrimination protections for the LGBT community in Michigan law, and members agree that working together is the best way to achieve this goal.

“Victory in Michigan requires thoughtful planning and, most importantly, sitting down with all of the many communities and groups whose support and engagement will be essential to successfully updating our laws. Any attempt to move forward without a clear path to victory is ultimately a disservice to the LGBT people who live in Michigan and risks dividing our community and others who deserve protection from discrimination,” the letter reads.

Among the signatories on the statement were the ACLU-Michigan; Equality Michigan; Transgender Michigan; state Sen. Rebekah Warren, D-Ann Arbor; and state House Reps. Jon Hoadley, D-Kalamazoo, and Jeremy Moss, D-Southfield.

But what has happened since then?
To say that the Fair Michigan team has been active in the LGBT community’s debate would be misleading. Attempts made by BTL to reach Nessel for comment in earlier reporting were left unanswered, including a reminder that the paper actively publishes op-eds and would be more than happy to publish one with a Fair Michigan byline.

During this time, Nessel has spoken to MLive, Gongwer and the Detroit Free Press – none of which are LGBT beat specific. Eclectablog had planned to sit down with Nessel and discuss Fair Michigan but she declined their offer, despite the fact that they acknowledged the turbulent nature of discussion surrounding the initiative.

BTL also reached out to McLellan, but he declined to comment on the initiative and the role he would be playing.
Nineteen days after Fair Michigan was announced, 40 trans, genderqueer and gender nonconforming community leaders in the state authored a letter to Nessel. In it they called for a meeting between Fair Michigan organizers and the trans community so that the trans community could understand more about the measure and voice their concerns directly to the initiative leadership. Their request was not honored and a meeting was not planned.

Instead, in an interview with MLive, Nessel was quoted as saying, “We are full steam ahead. I won’t talk to anybody about stopping (the ballot initiative),” seeming to dismiss the letter at the time.

Trans, genderqueer and gender nonconforming individuals will no doubt face the brunt of this effort. Since January of this year, 22 trans people have been murdered, most of whom were trans women of color. More and more of the trans community is facing more acts of violence from microaggressions to homicide.

“Our basic civil rights should be protected by law and not subject to the capriciousness of a largely uninformed or worse, misinformed public. The transgender community is afforded very few privileges and our rights should not be decided by those who are able to take their privileges for granted. If the opposition succeeds in convincing the majority of voters that we are a threat to their way of life, their beloved institutions and their families, we cannot win at the ballot,” the letter from the trans community reads.

Can There Be Reason?
This week Michigan Public Radio political analyst Jack Lessenberry chimed in on the Fair Michigan debate. Unfortunately, he chose to attack one of the most loyal, ardent and longstanding agencies for Michigan LGBTs – the ACLU of Michigan – suggesting they lacked backbone and a willingness to fight, headlining his piece, “The ACLU is unwilling to do anything meaningful to help push for LGBT civil rights.” This targeted an agency that has battled in the courtroom on behalf of LGBT people tirelessly, pro-bono, for decades. Referencing “multiple sources” without identifying them, Lessenberry noted, “The ACLU’s stand has deeply angered attorney Dana Nessel.” And?

Kary Moss, executive director of the ACLU of Michigan, promptly responded to the attack.

“The ACLU will not be scapegoated because proponents of a ballot initiative fail to garner the necessary support to win. We find such divisiveness unnecessary, unproductive and unfortunate. Their efforts would be better spent in explaining to Michiganders why the time is now for full LGBT equality. Given how much work remains for those of us who care deeply about the interests and images of Michigan’s LGBT community, we refuse to be drawn into baseless and personal attacks. Instead, the ACLU of Michigan will remain firmly focused on the critical work of making positive change for LGBT Michiganders,” said Moss.

It is this kind of polarizing tension that has been increasing over the past five weeks, seeming to fill a void where analysis and substantive discussions could be taking place.

Instead, the dialogue has devolved into name calling.

Nessel has had a long standing public beef with national (LGBT) groups and the ACLU. She complained that the ACLU and national organizations failed to support the DeBoer-Rowse case. It is true that at the time, with only six states having secured marriage equality, the ACLU told her it would be impossible to get it passed by the conservative 6th Circuit Court of Appeals. Luckily history had other plans. But at the time, the ACLU was not wrong in their assessment. We, in fact, did lose at the 6th Circuit in November 2014, but by that time 36 states had secured marriage equality – and a surprise move by the U.S. Supreme Court in the fall accelerated this movement. By the time the case met the setbacks anticipated by the ACLU two years earlier, there was much reason to hope that we would in fact go before SCOTUS and now win.

It should be noted that the national ACLU was part of the legal team in the Friedman courtroom in 2014 that helped secure a win for the DeBoer-Rowse case.

So far Nessel has been unwilling to address or hear anything that she thinks is anti-ballot initiative no matter how important the line of inquiry is. In the past month, she has avoided answering questions, while galvanizing some who honestly want to see a change in the law by any means necessary – a stance and a tactic worth evaluating – but she has not yet taken a seat at the table that would be a true coalition and a place where all tactics would be honestly assessed.

In fact, can a ballot initiative even move forward without a united LGBT coalition behind it?
Hopefully there will be more answers on Dec. 7 at the public meeting in Ann Arbor.

About the Author:

Susan Horowitz
Susan Horowitz is editor and publisher of Between The Lines/Pridesource.