In a First-In-The-Nation Decision, the Michigan Civil Rights Commission Holds That Sex Discrimination Includes Sexual Orientation and Gender Identity
The Michigan Civil Rights Commission took action Monday to address anti-LGBTQ discrimination. In a vote of 5-0-1 the Commission voted to approve a motion presented by Commissioner Alma Wheeler Smith to adopt as Interpretive Statement 2018-1 that “discrimination because of…sex” includes discrimination because of gender identity and discrimination because of sexual orientation.
Equality Michigan and 37 other LGBTQ organizations petitioned the Commission to issue an interpretative statement concluding that the Elliott-Larsen Civil Rights Act’s existing prohibition on sex discrimination encompasses discrimination based on both sexual orientation and gender identity.
“Equality Michigan commends the Commission for their pro-equality leadership,” said Stephanie White, EQMI’s executive director. “While we will continue to work tirelessly to see that the Elliott-Larsen Civil Rights Act is explicitly amended to protect LGBT Michiganders, the Commission’s action today has the practical effect of providing LGBT victims of discrimination with an opportunity to have their cases heard and to seek redress for the anti-LGBT discrimination that is all too common in our state.”
Erin Knott, EQMI’s political director said, “This action is an important, incremental step toward our goal of ending discrimination based on sexual orientation and gender identity in Michigan.”
Monday’s decision is of further significance because, unlike eighteen other states, Michigan does not currently have a state law that explicitly prohibits anti-LGBT discrimination in employment, housing, or public accommodations. In addition, although the federal prohibition on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 has been interpreted to encompass discrimination based on gender identity and sexual orientation, many LGBTQ people in Michigan do not receive the benefit of this prohibition, because they work for employers with fewer than fifteen employees, the threshold for Title VII coverage.
This interpretative statement has made it clear that anti-LGBTQ discrimination shall not be left unchecked in Michigan and it clarifies the legal responsibilities of employers and individuals and gives notice to victims of discrimination that there are remedies available.
EQMI’s request was reconsidered this year after 30 law professors and lawyers specializing in administrative, constitutional, and civil rights law wrote to the Commission to rebut arguments used by the Attorney General that blocked Commission action last September. Last November, the Commission heard directly from three of the legal experts who signed the letter, to answer commissioner questions, and to urge the Commission to take action:
– Samuel Bagenstos, Frank G. Millard Professor of Law, University of Michigan Law School, former Principal Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice.
– Mark Totten, Associate Professor, MSU College of Law.
– Eli Savit, Adjunct Professor, University of Michigan Law School, former law clerk to United States Supreme Court Justices Ruth Bader Ginsburg, and Sandra Day O’Connor.
“I commend the Commission for the courage they’ve shown in making this decision,” said Agustin V. Arbulu, Director of the Michigan Department of Civil Rights. “Beginning tomorrow morning, the department will begin processing complaints of sex discrimination based on sexual orientation and gender identity.”
“This is a welcome step forward in the fight for equality that will have a real impact on the lives of LGBTQ Michiganders, who are not explicitly protected from discrimination,” said HRC Legal Director Sarah Warbelow.
“Consistent with federal courts across the country, today’s decision affirms 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 laws, such as Title VII of the Civil Rights Act of 1964, and Michigan’s Elliott Larsen Civil Rights Act. We commend local advocates, including Equality Michigan and the ACLU of Michigan, for their tireless work to ensure that every person is treated equally under the law.”
With today’s vote, Michigan’s Civil Rights Commission has become the first commission of its kind to determine that laws prohibiting sex discrimination also prohibit discrimination on the basis of sexual orientation and gender identity. Other legal bodies – including the Equal Employment Opportunity Commission (EEOC) in Macy v. Holder (2012) and Baldwin v. Foxx (2015) – 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.
If you or someone you know has been the victim of discrimination, please contact Equality Michigan’s Department of Victim Services at 313-537-7000, ext 102 or via equalitymi.org/report