• Michigan Attorney General Dana Nessel addresses the Michigan Civil Rights Commission on Friday, Feb. 1 at Cadillac Place in Detroit. Photo courtesy of the Michigan Department of Civil Rights.

AG Nessel to Reconsider Predecessor’s Opinion on LGBTQ Protections

Kate Opalewski
By | 2019-02-03T00:41:00-04:00 February 2nd, 2019|Michigan, News|

While standing in front of the Michigan Civil Rights Commission at Cadillac Place in Detroit on Friday, Feb. 1, Attorney General Dana Nessel made it clear that discrimination against the LGBTQ community does occur on a daily basis in the state of Michigan.
Nessel detailed what she calls an “ugly reality” with several examples:
– Same-sex moms Krista Contreras and her wife Jami Contreras, were turned away by a pediatrician in Roseville.
– Aimee Stephens was fired from her job at R&G and G&R Harris Funeral Homes in Garden City when she came out as transgender.
– Same-sex couple Elizabeth Gardiner and Stephanie Citron of Royal Oak were denied health insurance benefits.
– Transgender women – Jessica Storm, Gregory Daniels, Norman Williams, Amber Monroe, and Kelly Stough – were murdered in Highland Park after being forced to work as prostitutes because, Nessel said, “it’s next to impossible for many trans women to find gainful employment so they have no other means to feed themselves or pay for shelter than work on the streets.”
After listing those instances of direct homophobia, Nessel said it’s because of LGBTQ discrimination like this that she “welcomes the opportunity” to reevaluate her predecessor’s formal opinion that could expand the Elliott-Larsen Civil Rights Act to include protections from discrimination based on sexual orientation and gender identity in employment, education, housing and real estate as well as use of public accommodations and public service.
Nessel also announced that she is opening the first hate crimes division in the state. “In my office, civil rights will not be an inconvenience,” she said. “They will be a priority.”
During the meeting, in a 6-0 vote, the commission approved a resolution directing the Michigan Department of Civil Rights to send a letter to Nessel asking her to reconsider AG Opinion 7305.
“My response without equivocation is that I believe it is incumbent upon me as attorney general of this great state to do just that,” she said. “Justice demands no less.”

History of the Opinion
In July 2017, Equality Michigan and 37 other LGBTQ organizations first petitioned the commission to clarify ELCRA and issue an interpretative statement that laws prohibiting sex discrimination also prohibit discrimination on the basis of sexual orientation and gender identity.
During a September 2017 commission meeting, following more than two hours of public comment on both sides of the issue, the commission’s legal counsel, Assistant Attorney General Ron Robinson, under former Attorney General Bill Schuette, informed the commission that it does not have the legal right to issue an interpretive statement on the issue, and that it is the role of the legislature to address any changes in law.
“And should the commission issue a ruling contrary to the attorney general, the commission would give up its governmental immunity and would be subject to a lawsuit,” he said at the time.
Despite this intervention, the commission became the first of its kind in the nation in May 2018 to issue the interpretative statement.
But in July 2018, Schuette authored an opinion which said “Michigan’s Constitution entrusts the legislature, and not executive agencies or commissions, with the authority to change, extend or narrow statutes.”
Schuette said that state law “prohibits discrimination based on sex but does not cover distinctions based on sexual orientation or gender identity … The commission’s ruling is invalid.”
The commission ignored Schuette’s opinion and directed the MDCR to accept, review and investigate complaints of discrimination in housing, employment and public accommodations based on sexual orientation and gender identity.
“The Michigan Civil Rights Commission is an independent, constitutionally created and established body,” said Agustin Arbulu, director of the MDCR, in a previous statement. “The commission is not bound by the opinion of the attorney general. The only recourse is for the courts to determine if issuing the interpretive statement was within the scope of the commission’s authority, and that is the appropriate venue for resolving this issue. Until that time, the department will continue to carry out the directive of the commission.”

The Michigan Civil Rights Commission approves a request to Attorney General Nessel to reconsider AG Opinion 7305. BTL Photo: Kate Opalewski

MDCR is currently investigating 13 complaints. Of those under investigation, five are related to claims of discrimination based on gender identity, and eight are related to claims of discrimination on the basis of sexual orientation.
Nessel told the commission that Schuette’s opinion “runs in direct conflict with years of legal jurisprudence from federal circuit courts from around the nation, including ours, the sixth circuit court of appeals.”
Robinson, who was appointed in January 2019 as the civil rights and civil litigation practice manager in the new attorney general’s office, spoke to his previous position during the meeting.
“That was the opinion of the old administration,” he said. “There’s a new sheriff in town.”
In fact, Robinson said he has received “reassurance” from Nessel who “said she knows I was in a difficult position at the time … I’m very excited about the new attorney general and the faith that she has in me.”

Nessel’s Personal Response 
Nessel, a Democrat, said she felt it was important to personally address the commission after Republican House Speaker Lee Chatfield appeared for an interview on Off the Record on Friday, Jan. 25. He indicated that even if there were enough votes in the chamber for passage, he would not allow a vote to amend ELCRA to include sexual orientation and gender identity. In support of his decision, Chatfield said, “Personally, I don’t believe people should be discriminated against. But at the same time, I’m never going to endorse a law or allow a bill to come for a vote that I believe infringes on someone’s ability to exercise their sincerely held religious beliefs.”
Advocates hope to expand ELCRA under Democratic Gov. Gretchen Whitmer, who signed an executive directive on Monday, Jan. 7 to strengthen LGBTQ protections. But, according to a Detroit News report, GOP Senate Majority Leader Mike Shirkey said “that Democratic efforts to expand ELCRA to include LGBTQ protections would likely be ‘heavily contested’ in a GOP-led legislature.”
“Majority Leader Shirkey is out of touch with popular opinion, as the majority of Michiganders believe that LGBTQ people deserve to be treated with the same fairness and dignity as everyone else in Michigan,” said Erin Knott, interim executive director of EQMI. “Equality Michigan stands ready to build bipartisan support around pro-LGBTQ legislation, and is working in coalition with the business community, faith leaders, community member and allies to finally, at long last, expand the Elliott-Larsen Civil Rights Act to make it fully inclusive for all Michiganders.”
In response to Chatfield, Nessel said, “People who choose to demean others or deny them employment, housing, educational opportunities, medical treatment or goods and services simply because of that persons sexual orientation or gender identity are not religious heroes, they are bigots.”
Chatfield said on the show, “If people today in Michigan were being discriminated against on a daily basis because of their sexual orientation, it would be statewide news, and we all know it.”
To that, Nessel responded, “I believe you are a kind man, a good man, a well-intentioned man, but Mr. Speaker, what you don’t know about discrimination against the LGBTQ community could fill not only the pages of a book, but that of an entire library.”
Nessel said it is her obligation to inform Chatfield that there are hundreds of thousands of people who identify as LGBTQ in this state, and many of them have experienced discrimination at some point in their life.
“Discrimination which would be greatly reduced or many times eliminated altogether were it just made illegal to engage in that practice in the first place,” she said, adding that states which enact policies are demonstrated to improve productivity rates, reduce turnover, enhance profitability and advance recruitment for businesses.
Nineteen states – including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia – have full LGBTQ non-discrimination protections in place.
“These states also see additional benefits including a reduction in suicide attempts by LGBTQ youth, and as someone who spent more time in my youth than I care to remember thinking of ways to end my life instead of dreaming about what I would one day do with my life, I can tell you this, your words, your rhetoric matter and I would be remiss in my obligations both as this state’s attorney general as well as the first openly gay statewide elected official if I failed to advise you of such.”
The next Michigan Civil Rights Commission meeting is scheduled for March 25. For more information, visit michigan.gov/mdcr/.

About the Author:

Kate Opalewski
Kate Opalewski is BTL's features editor and has been since 2015. She has covered a variety of topics ranging from art, politics and community outreach. Recently, she was honored by the Detroit Police Department LGBT Advisory Board for her work for the local LGBTQIA community.