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A Landmark Decision
“There’s a special obligation that you have as a black attorney. You have a special obligation to fight for civil rights. You have a special obligation to fight for those who don’t have this opportunity. And you have a choice. You are either going to be a social engineer for justice — or you’re going to be a parasite.”
Judge William McConico spoke those words by Charles Hamilton Houston when he accepted the Catalyst Award at Equality Michigan’s annual fundraiser last fall. As he recalled the courtroom decision for which he earned the evening’s honor, McConico added, “And I thought about that. And I said, ‘Today, I’m going to be a social engineer.’”
The day in question occurred in the summer of 2018, when McConico ruled that a brutal attack on a transgender woman in Detroit could be classified as a hate crime and the perpetrator sentenced accordingly. As it stands, Michigan’s Ethnic Intimidation [i.e. hate crime] Law does not protect LGBTQ people because it only specifies crimes based on race, color, religion, gender or national origin, but not gender identity or sexual orientation explicitly. Between The Lines recently sat down with McConico to learn how a career fighting for the civil rights of marginalized people led to that decision, beginning with his experience in the Michigan State Legislature at the forefront of LGBTQ rights.
Idealistic but Undeterred
Recently named chief judge for Michigan’s 36th District Court — the third-largest in the country — it’s hard to imagine McConico as an idealistic freshman lawmaker who was “shocked and startled” nearly 20 years ago when legislation that would protect the LGBTQ community was dead on arrival.
“I thought that this was common sense,” McConico said, of the three-bill package that he, Buzz Thomas and Chris Kolb introduced in 2001.
His bill added protections for hate crimes, Thomas’ would have been the first of any kind to address bullying and Kolb’s would amend the Elliott-Larsen Civil Rights Act to include LGBTQ people in its employment provisions. For McConico, LGBTQ rights were also personal: when he was younger, a friend whom he looked to as an older brother was brutally beaten on two occasions just for being gay. The attackers were never found; those crimes were not a priority.
“I thought it was important to have a person who was a married man, a father, an African American in this package, so this is not a gay issue, this is an issue of civil rights,” McConico explained. “Who could be against extending rights to protect someone from being discriminated against?”
The young lawmaker would soon find out.
Following a press conference with the Triangle Foundation, Equality Michigan’s predecessor, McConico approached the committee chairs about the bills receiving a hearing. He was met with silence. Then, the three were offered a deal: strip out LGBTQ protections from Thomas’ bullying bill, and they would allow it a hearing. Their answer was an emphatic “no.”
“We had people who said, ‘Well, make this a first step,’” McConico said. “’Do this, and add it later.’ No. No. I would never want to be the person to say, ‘Well, let’s do this and we’ll add African Americans later.’ No.”
In his three terms in the House of Representatives, the bills never had so much as a hearing. McConico added that even some Democrats confessed to him privately they would hesitate to vote in favor of the legislation should it come up for a vote, who he chose not to name.
“Struggle is Struggle”
Raised in Detroit by parents from the South surrounded by symbols of the civil rights era, McConico’s earliest heroes included Justice Thurgood Marshall and Martin Luther King Jr. He sought a career as a lawyer and a politician because he said he’s always gravitated to people who don’t have anyone fighting for them.
“When minority groups are left out and people think that no one cares or that they’re different, that is how people are allowed to be picked off and targeted and it’s happened throughout history. African Americans are targeted for certain things and other people sit back and watch it. The next thing you know, your community will be targeted. As an African American, as a person who has dealt with some discrimination, I can’t watch and let someone else get discriminated and say, ‘Well, that’s not me.’ I can’t do that.”
McConico suggested his motives sometimes aren’t understood.
“I’ve had other people ask me, ‘Bill, why are you focused in on that? Why aren’t you just dealing with our struggle, African American struggle?’ And my thing is, struggle is struggle.”
He pointed to the original makeup of the NAACP that included a number of white and Jewish members.
“A lot of times people think, ‘If I’m African American, I have to fight against racism.’ ‘If I am a woman, I have to work on women’s rights issues.’ But if we all get to the table, we can all spread it out and just work to knock this out together.”
The Right Case at the Right Time
“This is the definition of a hate crime,” McConico thought when he first heard about the case involving a transgender woman in Detroit who was attacked and shot, weeks before he learned it would be on his docket.
“The woman was in a gas station, minding her own business, someone struck up a conversation, thinking she was born a woman. [It] comes out that she’s transgender, and he attacks her and, ultimately, shoots her because she was transgender. And that is the definition of a hate crime,” he said.
Of the four judges who could have heard the case, it was assigned to McConico. And as it happened, Jaimie Powell Horowitz of the Fair Michigan Project was the prosecutor. When McConico found she was charging it as a hate crime, he thought to himself, “Well, I am the only judge in this building that would allow this charge to go forward.”
McConico recalled sitting in his chamber that day, looking at a picture of Charles Hamilton Houston.
“He always gave a charge to African American lawyers and law students, that if you’re not a social engineer for justice, you’re a mere parasite. We’ve got a calling that we’ve got to sometimes make the stands that others aren’t going to,” McConico said. “The way African Americans received most of our civil rights in this country were not through legislation, it was through courts.”
He named ending segregation and securing voting rights as two examples, then compared that to the way LGBTQ people were granted the right to marry.
“If you have to wait for the majority of people to change their minds where people’s civil rights and civil liberties are in the balance, that’s what courts are for,” he said. “I made a decision that day that I was gonna take a stand on this.”
McConico allowed Horowitz to present the case — some judges would have dismissed the charge outright — and ultimately let the charge move forward because she proved that the woman was attacked because of her gender. In other words, a charge of ethnic intimidation based on gender could be applied in this case because the woman was targeted for being transgender.
“So now, there’s a precedent in the state of Michigan. Now others are gonna have to make the decision,” McConico said. “We started something in the court that day. It would have been great to do it in the legislature. We tried that starting in 2001.”
McConico called this a test case. Indeed, it was heard by the Michigan Court of Appeals which, shortly before print, overturned his ruling by a 2-1 decision. That decision was appealed and it is predicted that the Michigan Supreme Court will rule on the case; if so, ultimately it will become settled law. McConico won’t predict the outcome, but based on the current makeup of the Michigan Supreme Court, he trusts that it will receive a fair hearing on both sides. There exists one other possibility, however. In the Appeals Court decision, a comment was made that this was a matter for the Legislature to decide, not a panel of judges.
In fact, HB 5139 and SB 593 were introduced in October and would accomplish this task, just as McConico himself attempted in 2001, and others have since. In these instances, sometimes the Legislature takes a cue from the courts and acts. It’s possible the bills could receive a hearing, and even an up or down vote. At this time, the legislation as well as the legal case hang in the balance.
There are those who decry “legislating from the bench” or use the term “activist judge” as an unflattering moniker. McConico not only owns those descriptions, he wears them like a badge of honor.
“I am an activist judge,” McConico said proudly. “I don’t take it as a criticism. I believe the courts have always been there for unpopular causes; they have always been the vehicle to extend civil rights and civil liberties. Those are Republican and conservative terms, and I don’t fight any battles on someone else’s grounds. When people say that, they’re talking about me! They’re talking about when rights were extended to African Americans; they’re talking about when rights were extended to women, when rights were given to poor people — like there’s something wrong with that. I’m not allowing that.”
McConico said he was very surprised that the case garnered the attention that it did. He’s encouraged because it shows that people are taking the issue seriously.
“When I got the call that I was getting the [Equality Michigan] award, I was stunned. And it showed me that sometimes things take a long time. And that’s why you’ve got to be patient. You can’t get so frustrated at the time and the pace and just give up. I’m very excited about all of this, but it’s not for me. It just shows people that we started something 19 years ago and we’re finally getting movement on it. So I was pleasantly shocked, bewildered — all of that — by the attention. And I tell people, you do things for the right reasons, you get good results. So, it wasn’t done to get attention or notoriety or anything of that nature, but it just — the case came to me at the right time.”