Lansing — The Michigan Civil Rights Commission is considering a small word with big implications — specifically whether “sex” discrimination language in an existing civil rights law should also guarantee long-sought protections for gay and transgender residents.
The commission is seeking public feedback through Aug. 15 as it prepares to address a request from Equality Michigan. The advocacy group is asking for an interpretive statement finding it is an unlawful form of sex discrimination to discriminate in employment, housing or public accommodations based on an individual’s gender identity or sexual orientation.
Equality Michigan has long urged state legislators to expand the 1976 Elliott-Larsen Civil Rights Act to include gender identity and sexual orientation but has not been successful. The law currently covers sex, religion, race, weight, marital status and more, and the group notes it’s been nearly 33 years since a gay rights amendment was first proposed.
An interpretive statement could clear up a “glaring ambiguity” in the law and have “essentially the same effect as amending the statute directly,” said Nathan Triplett of Equality Michigan. It would allow individuals to file sex discrimination complaints with the civil rights commission on the basis of gender identity or sexual orientation.
“We feel strongly that after 30 years of attempting to get the Legislature to acknowledge discrimination is a problem in our state, and 30 years of (gay and transgender people) not having a remedy when they face discrimination, this incremental step is an important one to take while we continue to work” on legislative changes, Triplett said.
The request is backed by a coalition of groups such as the American Civil Liberties Union of Michigan, Affirmations of Ferndale and LGBT Detroit, who point to a growing body of federal policy and court rulings that have applied existing sex discrimination protections to transgender and gay people.
But a state-level finding would likely face some opposition, including in the Republican-led state Legislature, where Rep. Gary Glenn, R-Midland, said that by expanding the interpretation of sex discrimination, the Civil Rights Commission would be “exercising law-making authority” the Michigan Constitution reserves for elected representatives.
“So-called ‘sexual orientation’ and ‘gender identity’ laws in other states and jurisdictions have proven themselves to be discriminatory and punitive against individuals, churches, and civic organizations which believe as a matter of sincere religious conviction homosexual behavior is wrong,” said Glenn, who advocated against same-sex marriage before joining the Legislature.
He highlighted a recent controversy in mid-Michigan, where farmer Steve Tennes was excluded from the East Lansing farmers market for violating the city’s non-discrimination ordinance by declining to host same-sex weddings at his own Country Mill Farms in Charlotte. GOP legislators hosted Tennes at the state Capitol this spring when he announced a federal lawsuit against East Lansing, which the city is attempting to dismiss.
Glenn challenged gay rights advocates to identify individuals they can prove were denied housing, employment or access to a public accommodation “based on who they have sex with.”
The civil rights commission, in a 2013 report, concluded that discrimination based on sexual orientation and gender identity “exists and is significant” and has “direct negative economic effects on Michigan.”
The commission is expected to address Equality Michigan’s request at a Sept. 18 meeting in Lansing. It’s not clear if the Legislature could attempt to override a decision by the commission, which was created by the 1963 Michigan Constitution and empowered to investigate alleged discrimination.
‘A legal nightmare’
Gay rights advocates argue statewide protections are needed despite an increasing number of local ordinances and federal-level rulings that have expanded the scope of sex discrimination cases.
Under President Barack Obama, the Equal Employment Opportunity Commission ruled in 2012 that transgender job discrimination was a form of sex discrimination. The 6th Circuit U.S. Court of Appeals, which covers Michigan, has twice equated sex discrimination with gender identity, and the 7th Circuit appeals court this year found federal law prohibits employment discrimination on the basis of sexual orientation.
“So what we’re requesting the Michigan Civil Rights Commission to do is really make a finding that is consistent with federal law,” ACLU attorney Jay Kaplan said. “This is not anything radical.”
Federal civil rights law affords workplace protections at companies with 15 or more employees, but state law is more expansive and covers workers at companies of all sizes, Kaplan said. And while various courts have weighed in, he noted the U.S. Supreme Court could ultimately have the final word.
More than 40 Michigan municipalities have some type of gay rights ordinance, according to advocates. But efforts to expand local anti-discrimination protections have often proven controversial.
The Jackson City Council this year passed a non-discrimination ordinance, but it was delayed several months when opponents launched a petition drive in an attempt to block the rule and put the matter before voters. A judge ended up tossing invalid signatures and the measure went into effect.
“While you need to love everyone, certainly people feel that you have to ‘love me on my own terms, and if you don’t do that, then you don’t love me,’ ” said Tim Nelson, a Catholic pastor who fought the Jackson ordinance. “That’s the tension I think.”
Nelson told The News he believes prior Jackson rules already did enough to prevent discrimination and is worried how the new ordinance may play out in the workplace or housing.
“A person who is gay may feel or perceive that a decision not to rent to them is based on their gender identity, and that may or may not be the case, and so then the landowner has to defend himself on all of that,” Nelson said. “It can be a legal nightmare.”
Where to weigh in
While Democrats have continued to propose changes, Michigan’s GOP-led Legislature last seriously considered expanding the Elliott-Larsen Civil Rights Act in 2014. A House panel took testimony but did not vote on a proposal that then-House Speaker Jase Bolger of Marshall wanted to pair with a state-level Religious Freedom Restoration Act.
Bolger also questioned the need to include transgender protections in the legislation, noting some of the same federal court decisions in sex discrimination cases that transgender advocates are now citing in their request to the Michigan Civil Rights Commission.
“I think we need to get the policy right, and those court cases seem to show me that somebody’s gender identity is already covered,” the Republican House speaker said at the time.
A coalition of large Michigan employers has backed efforts to expand the state civil rights law by including sexual orientation and gender identity, saying it would help their ability to attract talented workers. The group includes Quicken Loans, Pfizer, the Detroit Medical Center, AT&T, Consumers Energy, Dow Chemical and Delta Air Lines.
The renewed state debate has drawn the attention of the National LGBTQ Task Force, which is urging supporters to help “make Michigan equal for all” by submitting comments in support of the proposed sex discrimination interpretation.
To ensure that it is “considering all points of view” on Equality Michigan’s request, the commission has asked the Department of Civil Rights to solicit public comments through Aug. 15.
Residents interested in weighing in can send emails to MCRC-Comments@michigan.gov.