AG Schuette: LGBTQ People Not Protected Under State Law

Attorney General – and candidate for Governor – Bill Schuette issued a formal opinion Friday, July 20 asserting that under the state's Elliott Larsen Civil Rights Act LGBTQ Michiganders are not protected from discrimination on the basis of sexual orientation and gender identity.
The opinion conflicts with a Michigan Civil Rights Commission vote in May affirming the act covers 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.
Schuette's 19-page opinion, addressed to Republican leaders in the state House and Senate who requested it, said 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."
Earlier this year, the Michigan Civil Rights Commission became the first commission of its kind in the nation to determine that laws prohibiting sex discrimination also prohibit discrimination on the basis of sexual orientation and gender identity. The Human Rights Campaign points to other legal bodies – including the the Equal Employment Opportunity Commission in Macy v. Holder (2012) and Baldwin v. Foxx (2015) – that have similarly found that Title VII of the Civil Rights Act of 1964 protects against discrimination based on sexual orientation. Numerous federal courts have also determined that sexual orientation and gender identity are forms of sex discrimination. The Sixth Circuit, which covers Michigan, recently determined for the fourth time that federal laws prohibiting sex discrimination also prohibit gender identity discrimination in EEOC v. Harris Funeral Homes. Neighboring circuits have determined that sex also includes sexual orientation.
Though recent federal court rulings have interpreted "sex" to include sexual orientation, "these newer federal decisions … do not follow Michigan's principles of statutory interpretation," Schuette wrote. "Michigan's Constitution entrusts the Legislature, and not executive agencies or commissions, with the authority to change, extend, or narrow statutes."
Michigan Department of Civil Rights Director Agustin Arbulu issued a statement on Friday.
"The Department has just received the Attorney General's opinion on the interpretive statement and is in the process of reviewing it," he said. "The Commission is meeting on Monday and I expect they will discuss the ruling and develop a course of action at that time. We will continue taking and processing complaints, but we will not begin investigating those complaints until after the Commission provides us with direction."
HRC Michigan State Director Amritha Venkataraman said, "Bill Schuette is unfit to serve as attorney general, and this latest outrageous act proves once again that he cannot represent all Michiganders equally and fairly. Attorney General Schuette has chosen to ignore legal precedent and leave thousands of LGBTQ Michganders at risk of discrimination. Numerous federal courts have determined that discrimination against an individual based on their sexual orientation or gender identity is fundamentally a form of sex discrimination – which is prohibited both under federal law, including Title VII of the Civil Rights Act of 1964 and Michigan's Elliott Larsen Civil Rights Act. The Human Rights Campaign is on the ground working hard to elect pro-equality champions who support commonsense protections for LGBTQ Michganders and ensure that Schuette never makes it to the governor's mansion."
In Michigan, the HRC has identified more than 1.1 million "Equality Voters" – voters who support LGBTQ-inclusive policies including marriage equality, equitable family law, and laws that would prohibit discrimination on the basis of sexual orientation or gender identity. The HRC has prioritized investments and organizing in Michigan in the 2018 cycle, and has already put staff and resources on the ground in the state.
"The Michigan Civil Rights Commission acted lawfully when it issued Interpretative Statement 2018-1. Specifically, the commission voted to adopt as Interpretive Statement 2018-1 that "discrimination because of…sex" includes discrimination because of gender identity and discrimination because of sexual orientation," said Stephanie White, executive director of Equality Michigan on Friday.
"It is imperative that the Michigan Civil Rights Commission defend its interpretation as the attorney general's opinion does not have the force of law, and cannot bind state agencies. While the attorney general continues to polish his anti-LGBT credentials in a contested gubernatorial race, today's overreach cuts at the commission's core constitutional authority, which should concern everyone."