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

Editor's note: This commentary was originally published online Dec. 4, and updated for print Dec. 8.

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. The Jim Toy Community Center in Ann Arbor hosted a public meeting Dec. 7 to try and address some serious questions that deserve answers.
Everyone who spoke was clear they want to see Michigan's civil rights law amended to include protections for sexual orientation and gender identity, but that's where the agreement began and ended. 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.
Dana Nessel described a poll conducted by Fair Michigan that shows 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 Fair Michigan would face.
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 require all hands on deck and yet so far, exactly the opposite has happened.

Recent History

During much of 2013 and 2014, many organizations and businesses worked hard 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 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, shortly after the Nov. 3 loss of HERO in Houston, 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. Electablog 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 did reach 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 nationally, 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.
Former Congressman Mark Schauer, the final speaker at the Dec. 7 meeting, called on all parties involved to meet soon to jointly analyze all the data, including polling done by Fair Michigan, modeling done by Freedom For All Americans, research conducted on behalf of the ACLU and any other available research that has been conducted on the viability of a ballot campaign in Michigan next year. Schauer said once that full analysis is completed, behind closed doors by seasoned political experts, the results should be presented to the large group in a meeting in early January. Only then can an informed decision be made on the best path forward for full equality – hopefully a path that everyone can follow together.
Our community deserves the rigorous analysis and strategic campaign planning that must be done before embarking on a campaign of this magnitude. Once such analysis and planning in completed and presented to the stakeholders, the LGBT community can then unite in the ongoing struggle for equality.


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