Michigan Attorney General Dana Nessel plans to fight a court determination that businesses may, under state law, choose not to serve customers who are gay.
State Court of Claims Judge Christopher M. Murray in a summary judgement this week ruled that Michigan’s definitive anti-discrimination law, the Elliott-Larsen Civil Rights Act of 1976 (ELCRA), doesn’t include protections for sexual orientation. The same ruling found that it does, however, protect based on gender identity.
Before the court were two religion-based cases: Rouch World, a 300-acre park and wedding venue in Sturgis, refused to host the wedding of a same-sex couple; and Uprooted Electolysis, a hair removal business in the Upper Peninsula’s Marquette, refused service to a transgender client who was going through sexual reassignment surgery.
The former scenario, the court ruled, doesn’t violate Michigan’s ELCRA
“I respectfully disagree with the Michigan Court of Claims on its ruling in this case as it relates to sexual orientation,” Nessel said. “Michigan courts have held that federal precedent is highly persuasive when determining the contours of the Elliott-Larsen Civil Rights Act, and federal courts across the country – including the U.S. Supreme Court in Bostock v Clayton Co – have held that discrimination on the basis of sexual orientation is a form of sex discrimination.
“We intend to submit that all Michigan residents are entitled to protection under the law – regardless of their gender identity or sexual orientation – in our appeal to this decision.”
The ELCRA states discrimination based on “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status” is illegal in the workplace, housing, schools or access to public spaces.
At issue is what is meant by the term “sex.”
The Michigan Department of Civil Rights issued its own interpretation that included discrimination based on gender identity and sexual orientation.
Based on that interpretation, it took enforcement action against Rouch World and Uprooted Electolysis. Attorney David Kallman of Kallman Legal Group said the incidents were similar and combined into one lawsuit to challenge the Michigan Department of Civil Rights.
Kallman said, like the Attorney General’s Office, he’s happy with half the decision.
Regarding sexual orientation, Kallman said it’s a settled issue, pointing to the state Supreme Court ruling in Barbour v. Department of Social Services, which Murray also cited. That ruling said: “Harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the act.”
Murray’s opinion said no Michigan court has ruled on whether gender identity is protected under the Elliott-Larsen Act.
“As is often the case, when no guiding Michigan decision exists on the meaning of a provision within the ELCRA, courts turn to a consideration of federal decisions applying analogous provisions of Title VII,” Murray wrote. Title VII is the section of the federal Civil Rights Act of 1976 that addresses discrimination, which courts have since ruled does protect based on gender identity.
A federal ruling found “that an employer violates Title VII when it treats an employee born male but who now identifies as female differently than an employee born female,” according to Murray.
Although that decision is “not controlling,” since it addresses federal and not state law, Murray wrote that it does “provide persuasive authority for considering and resolving cases brought pursuant to Michigan’s Civil Rights Act.”
What Murray’s ruling didn’t address is how religious freedoms might impact a business’ right to discriminate against transgender customers.
Kallman said religious beliefs are at the heart of the discrimination incidents.
Murray’s ruling said: “Whether enforcement of (the Michigan Department’s rules), as modified by this opinion and order, would interfere with plaintiffs’ First Amendment rights to the free exercise of religion has not been sufficiently briefed to resolve at this juncture.”
That decision is expected at a later date and Kallman said he doesn’t have reason to appeal the summary judgement until that’s resolved.
The Attorney General’s appeal is likely to be filed in the state Court of Appeals. Whichever way that court rules, Kallman expects the issue of discrimination based on sexual orientation to land before the state Supreme Court.
“We are encouraged that the Michigan Court of Claims has ruled the word ‘sex’ in ELCRA encompasses gender identity, but we will continue to argue that the U.S. Supreme Court was right to conclude, as did the Michigan Civil Rights Commission, that ‘sex’ in this context is also inclusive of sexual orientation,” Michigan Department of Civil Rights Chair Stacie Clayton said. “We are confident that Michigan’s appellate courts will do the same.
“The fact is that continuing to interpret the word ‘sex’ in a more restrictive way than we do any of the other protected classes under ELCRA is in itself discriminatory.”
Despite the ruling, the Michigan Department of Civil Rights intends to continue investigating sexual orientation discrimination claims.
“We need to take a complaint and begin our investigation in order to determine whether the ruling in the Rouch case applies before deciding how to proceed,” said Dan Levy, the law and policy director for the agency. “If the facts warrant a charge only on discrimination based on sexual orientation, we will hold the complaint pending a final result in this case.
“If there are also gender identity or other state or federal law claims, we will make a determination on whether to proceed on those, or hold the complaint pending the final ruling on the state’s definition.”
Nessel in 2014 represented April DeBoer and Jayne Rowse, a same-sex married couple from Hazel Park, whose challenge of discriminatory state adoption laws based on sexual orientation made its way to the Supreme Court and helped result in nationwide legalization of gay marriage.
More on MLive:
Wedding venue declined to host same-sex marriage
New ballot initiative would protect LGBT Michiganders from housing, employment discrimination
Lawmakers, Whitmer renew push to expand civil rights protections to Michigan’s LGBTQ residents