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Michigan gay, trans residents win new bias protections

Jonathan Oosting
The Detroit News
Civil Rights Director Agustin Arbulu said his department will begin processing and evaluating complaints Tuesday after the panel voted Monday that current sex discrimination protections should apply to cases based on sexual orientation or gender identity.

Lansing – Michigan will begin investigating claims of alleged workplace and housing discrimination against gay and transgender residents after the Civil Rights Commission said Monday they should be protected under current state law.

Advocates hailed the commission's decision as a breakthrough for gay rights in Michigan, where efforts to expand civil rights laws have stalled in the Republican-led Legislature. But critics contended the panel exceeded its authority and are considering legal action.

In a 5-0 vote with one member abstaining, the commission held that existing protections against sex discrimination should also apply to sexual orientation and gender identity. The Michigan Department of Civil Rights will begin processing and evaluating such complaints Tuesday, said Director Agustin Arbulu.

“Someone who feels their rights are being abridged on account of being transgender or being gay, on the basis of sexual orientation or gender identity, have a place they can go to file a complaint and have their grievances heard and investigated,” Arbulu told The Detroit News.

“I think it’s a great day for the state of Michigan.”

The commission’s 5-0 vote effectively expanded protections for gay and transgender residents through the Elliott-Larsen Civil Rights Act of 1976, punctuating years of debate over changing the law. The action came after months of debate over a request for an interpretive statement filed by Equality Michigan, the state’s largest gay rights advocacy group.

The commission tabled the request last fall before it was reintroduced Monday by Alma Wheeler Smith, a Democrat and former state lawmaker appointed to the panel in January by Republican Gov. Rick Snyder. Panel members Jeff Sakwa and Ricardo Resio missed Monday’s remote meeting in Ypsilanti, and Bishop Ira Combs abstained from the vote.

Advocates said the interpretation is consistent with recent federal court rulings. But David Kallman, an attorney with the Great Lakes Justice Center in Lansing, called it a “clear violation of the separation of powers” between governmental branches and noted the Legislature has chosen to shelve bills that would change the anti-discrimination law.

“This honestly is such an arrogant abuse of power by the Civil Rights Commission it literally boggles my mind,” he said.

Kallman’s firm filed arguments with the commission in August on behalf of 11 Republican legislators and will meet Tuesday to discuss options. The lawmakers could now file a lawsuit challenging the commission's authority or request an opinion from Attorney General Bill Schuette’s Office, he said.

“This commission is unaccountable to the people,” he said. “They are not elected. … They have by fiat changed Michigan law because they somehow think they know better.”

State. Sen. Patrick Colbeck, R-Canton Township, said he was not immediately sure how or if legislators will act but reiterated his position that “you cannot change statute without the Legislature.”

Panel follows court rulings

But Equality Michigan and other supporters said the interpretation mirrors recent federal court and commission decisions that have expanded the legal definition of sex discrimination.

The 6th U.S. Circuit Court of Appeals in March ruled in favor of a woman who said she was illegally fired by a Garden City funeral home after disclosing she was transitioning from male to female and dressed as a woman. 6th Circuit decisions cover Michigan.

Monday’s commission vote is a “huge” development for gay rights in Michigan, said Equality Michigan Executive Director Stephanie White.

“It’s been a long fight. It just important for gay and trans Michiganders to have the same access to a process for justice that everybody else in our state has, and yesterday we didn’t’ have that.”

The new interpretive ruling is nothing "radical" and mirrors federal rulings, said Jay Kaplan, a staff attorney with the American Civil Liberties Union of Michigan. 

"But it's incredibly significant because until we can have these specific protections (written into state law), this interpretation allows LGBT people to seek a remedy under current civil rights law," Kaplan said.

The Garden city case solidified protections for Michigan workers at companies with 15 or more employers covered by federal rules, but the Michigan Department of Civil Rights will now be able to investigate complaints at smaller businesses, Arbulu said.

The state law also applies to discrimination in education and at places of public accommodation such as restaurants, hotels, museums and parks.

Anyone accused of discrimination is given a chance to respond and defend themselves, he said. “During the investigative process, which is neutral, we take all that into account to determine whether or not" accusations are true, Arbulu said.

Expansion efforts stalled

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-Republican House Speaker Jase Bolger of Marshall wanted to pair with a state-level Religious Freedom Restoration Act.

Snyder, who previously urged state lawmakers to consider amending the civil rights law but has not explicitly called for new gay rights protections, did not immediately respond to a request for comment.

A coalition of large Michigan employers has backed efforts to expand the law by including sexual orientation and gender identity, arguing 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 civil rights department, 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.”

Monday’s vote is an important step for gay rights but should not end the push to modify the state’s anti-discrimination law, White said. Commission members could change in the future and roll back the protections, she said.

“This is, at the end of the day, an interpretation of the law," White said, "and to have it explicitly stated that in Michigan we will not discrimination against gay and trans people – that is still important.”


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