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LANSING— On Tuesday a Michigan Court of Appeals panel ruled 2-1 that Michigan’s state law criminalizing ethnic intimidation does not protect transgender people. It currently criminalizes “race, color, religion, gender or national origin.” The case in question is People of the State of Michigan v. Deonton Autez Rogers in which Kimora Steuball was non-fatally shot in the shoulder at a Wayne County gas station by Rogers in 2018 because of her transgender identity.
Surveillance footage caught the incident on tape and during her initial testimony in a Fox 2 Detroit Report Steuball said that she felt threatened when Rogers called her a racial slur and “pulled out a gun.”
“He was like, ‘Well, I’ll kill you,’ you’ll kill who?” she testified. “I’m transgender. I know what transgenders go through. We go through this every day. Getting attacked, guns pulled out on us, shot at, shot at, robbed. I didn’t know anything. I didn’t know what was going to happen to me. I was terrified for my life.”
Initially, Rogers was charged with various assault-related crimes and ethnic intimidation initially, but a trial court rejected the ethnic intimidation charge. The Detroit News reported that “the court found that the word ‘gender’ only applies to ‘masculine, feminine, and neuter genders.’” The Appeals Court agreed with the decision about the ethnic intimidation charge.
Appeals Court Judge Michael Gadola wrote in a ruling joined by Judge James Redford that despite the defendant’s “abhorrent” treatment of the victim and Steuball deserving the “protection of the law,” that their “judicial role” does not permit them to “extend that much-deserved protection to her in this case.”
“Because the word ‘gender’ is not defined within the ethnic intimidation statute, we may consult dictionary definitions of the word to determine what is included within its meaning. This is not, however, a simple matter of picking up a contemporary dictionary, as the district court appears to have done in making its bindover decision, to determine the meaning of a term enacted into law in 1988,” Gadola wrote. “This is because our task as judges is to determine what the statute meant at the time the people adopted it, not what it might mean under an evolved understanding of the statutory language more than 30 years following its enactment.”
Appeals Judge Deborah Servitto had a dissenting opinion. She argued that transgender people should be included under the term gender under Michigan’s existing law because the victim was being harassed for identifying as a female despite being born male.
“In this matter, the victim was targeted specifically because she was assigned biologically male at birth. Our role is to effectuate the intent of the Legislature and I believe that to recognize that the victim here was targeted because of her gender, whether that which was expressed outwardly or that which defendant believed she should have outwardly expressed, has an important role in effectuating the Legislature’s intent — to criminalize and punish hate-based or discriminatory intimidation and harassment,” Servitto wrote.
Erin Knott is the executive director of Equality Michigan, a political advocacy organization that seeks justice for LGBTQ people who have experienced hate crimes. She said she was “disappointed” with the decision.
“… Which underscores the importance of modernizing our Ethnic Intimidation Law to include explicit protections by adding sexual orientation, gender identity and expression to the existing law to eliminate any confusion,” Knott said in a statement. “There are two bills currently in both the House and Senate that would accomplish this task; HB 5139 and SB 593. Should [the] ruling be appealed to the Michigan Supreme Court, we hope that the Court would come to a different conclusion.”
Currently, a petition campaign is underway that seeks to create legislation that would expand the Elliott-Larsen Civil Rights Act and ban discrimination based on sexual orientation and gender identity in similar cases across Michigan. Created by a group called Fair and Equal Michigan, if it receives 340,047 signatures by May 27, the proposed legislation could end up on the Nov. 3 ballot.