Lansing — Top-ranking Republican legislative leaders are asking GOP Attorney General Bill Schuette for a legal opinion on the state Civil Rights Commission’s power to extend anti-discrimination protections to gay and transgender residents.

The panel last month adopted an interpretive statement allowing the Michigan Department of Civil Rights to investigate suspected discrimination based on sexual orientation or gender identity under an existing law prohibiting discrimination based on sex.

But the commission overstepped its bounds, said Senate Majority Leader Arlan Meekhof of West Olive and House Speaker Tom Leonard of DeWitt.

In a May 29 letter, the GOP leaders asked Schuette to weigh on what they called the commission’s decision to “usurp the Legislature’s authority by attempting to amend state law under the guise of an interpretive statement.”

Meekhof and Leonard accused the bipartisan panel of attempting to rewrite the Elliot Larsen Civil Rights Act of 1976 “beyond its plain meaning and underlying intent.” By doing so, the commission “threatens to undermine our system of government,” they wrote.

Several legal scholars and experts told the commission they had the authority to issue the interpretive statement, which was requested last year by Equality Michigan, said Vicki Levengood, a spokeswoman for the Department of Civil Rights.    

“We were expecting this to happen, so it’s not a surprise to us,” Levengood said of Meekhof and Schuette’s request. The Detroit News reported last month that the Senate was likely to seek an opinion.

LGBT advocates say the expanded interpretation of sex-based discrimination protection is consistent with recent federal court rulings. 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.

Schuette's office has received Meekhof and Leonard's request for a legal opinion and is “reviewing the letter as well as Michigan laws and statutes that apply," spokeswoman Andrea Bitely said Wednesday. 

The attorney general is not obligated to issue an opinion, but if he does, the review process can take anywhere from a day to a year, Bitely said. “There’s really no set time, to be honest with you,” she said.

The review could be fraught with political implications. Schuette is a candidate for governor competing in the Aug. 7 primary ahead of the Nov. 6 general election. Leonard is seeking the GOP nomination to replace Schuette as attorney general.

The Civil Rights Commission had tabled debate on the anti-discrimination issue last fall after Assistant State Attorney Ron Robinson told members they did not have the power to decide the scale and scope of sex discrimination prohibited under existing law.

But commissioners took up the request again feedback from other experts, including a group of 27 attorneys and law professors who wrote them in October and disputed Robinson’s advice.

“It is a bedrock principle of Michigan’s Administrative Procedures Act — and of administrative law generally — that agencies maintain the authority, in the first instance, to interpret the statutes they administer,” they wrote. “Michigan’s Legislature has expressly granted agencies the authority to interpret the statutes they are charged with enforcing.”

Among the attorneys signing the 2017 letter were prominent Democrats, including current Secretary of State candidate Jocelyn Benson, former dean of the Wayne State School of Law, and 2014 attorney general candidate Mark Totten.

The Elliott-Larsen law prohibits discrimination in the workplace, housing, education and places of public accommodation, such as restaurants, hotels, museums and parks.

The Michigan Department of Civil Rights is now accepting complaints of suspected discrimination based on sexual orientation or gender identity. Multiple individuals have contacted the department about filing complaints, Levengood said, but the process to actually file a complaint and launch an investigation takes time.

“It’s a little to early to get a sense of the volume of complaints we may be taking,” Levengood said. “We should know more in another month or so.”

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