The Agency Will Continue Taking LGBTQ Discrimination Complaints
During a meeting on Monday, July 23 in Williamsburg near Traverse City, the Michigan Civil Rights Commission reiterated their support for the interpretive statement they issued on May 21, interpreting the word “sex” in the Elliott-Larsen Civil Rights Act to include sexual orientation and gender identity.
This follows a formal opinion issued on Friday, July 20 by Attorney General – and candidate for governor – Bill Schuette asserting his opinion 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’s action directed the Michigan Department of Civil Rights – the operational arm of the Commission – to continue investigating complaints of discrimination 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 Michigan Department of Civil Rights in a 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.”
Schuette’s 19-page opinion, addressed to Republican leaders in the state House and Senate who requested it, said “Michigan’s Constitution entrusts the legislature, and not executive agencies or commissions, with the authority to change, extend, or narrow statutes.”
The MCRC 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.
This is not the first attempt by Attorney General Schuette to derail the Commission. In September 2017, after a last-minute intervention by the attorney general’s office, the Commission tabled a request by Equality Michigan and 37 other LGBTQ organizations that petitioned the Commission to issue the interpretative statement.
EQMI’s request was added to the agenda for reconsideration after several law professors and lawyers specializing in administrative, constitutional, and civil rights law wrote to the Commission to rebut arguments used by the attorney general to block Commission action.
“The Commission has the legal authority to interpret statutes the legislature has empowered them to enforce,” said Stephanie White, executive director of Equality Michigan in a statement. “This empowerment has been made clear by the Michigan Supreme Court, and are also consistent with the structure and language of both the Administrative Procedures Act and the Elliott-Larsen Civil Rights Act.”
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.
Human Rights Campaign 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.”
“The Attorney General has no role in the process, and his opinion cannot invalidate the Commission’s interpretation, as he is not a judge, nor are his opinions judicial decisions,” said White. “The Attorney General’s analysis of the underlying interpretative question is wrong. He cherry-picked precedents to arrive at his preferred policy, citing precedents that have been overruled, dissenting opinions, and ignores the bulk of precedent from around the country, including federal courts encompassing Michigan.”
Attorney Dana Nessel, who is running as the Democratic candidate for Michigan attorney general weighed in.
“This is just another move in a long line of actions taken by Bill Schuette to persecute a community he should be protecting,” she said. “Is it any wonder LGBTQ people in our state are subjected to record-high rates of serious assaults and other hate crimes when our attorney general consistently conveys the message that this community is not worthy of the same protections as all other Michigan residents? Let’s use Schuette’s terrible opinion as motivation to do everything we can to replace this bigot with an attorney general who will always have the best interests of LGBTQ residents in mind.”