Nessel to appeal case involving companies that refused same-sex, transgender individuals

Beth LeBlanc
The Detroit News

Michigan Attorney General Dana Nessel plans to appeal a Monday ruling in which a state Court of Claims judge found the state's anti-discrimination law did not extend to those treated unequally on the basis of their sexual orientation.

Court of Claims Judge Christopher Murray ruled Monday that the Elliot-Larsen Civil Rights Act's ban on discrimination on the basis of sex applies to gender identity, but not sexual orientation.

The case arose when two companies argued Michigan's civil rights law did not bar them from denying service on religious grounds to a same-sex couple and transitioning individual. 

Murray's decision contradicted a 2018 interpretation of the law by the Michigan Civil Rights Commission, which interpreted the law's ban on discrimination on the basis of sex to include unequal treatment based on both gender identity and sexual orientation. 

Murray did not weigh in on whether the commission's enforcement of those interpretations violated the companies' religious rights because it had "not been sufficiently briefed to resolve at this juncture."

Nessel vowed to appeal the decision to the Court of Appeals. If the court's decision is unfavorable there, the question could end up next year in front of a new Democratic majority on the Michigan Supreme Court. 

Federal courts, which are influential when determining the exact definitions of elements of the Elliot-Larsen Civil Rights Act, have found "discrimination on the basis of sexual orientation is a form of sex discrimination," Nessel said. 

"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," she said. 

David Kallman, a lawyer for the conservative Great Lakes Justice Center representing the companies, called Murray's order a "split opinion" that may trigger an appeal on the "gender identity" ruling. 

Still, Kallman noted the heart of the case is that the companies' First Amendment right to freedom of religion was violated. Even if the Elliot-Larsen Civil Rights Act is found to cover both "gender identity" and "sexual orientation," the religious freedom defense would remain. 

"We would eventually get to that issue," Kallman said.

The Michigan Civil Rights Commission said it welcomed Nessel's defense of its 2018 interpretation. 

“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," said Stacie Clayton, chairwoman for the Michigan Civil Rights Commission."

Rouch World LLC, a wedding venue in Sturgis, and Uprooted Electrolysis LLC in Marquette filed their case in August during an ongoing investigation by the Michigan Civil Rights Commission. 

In 2019, Rouch World had declined to host and participate a same-sex wedding ceremony because of religious reservations, and Uprooted Electrolysis had denied service to an individual transitioning from a man to a woman, again because it conflicted with their religious beliefs. 

Both parties filed complaints with the Civil Service Commission, which began an investigation in 2019 and demanded interrogatories and the production of documents in 2020. 

Kallman argued the commission was conducting an investigation on an allegation not protected by the Elliot-Larsen Civil Rights Act, namely discrimination on the basis of sexual orientation or gender identity.

The definition of the word "sex" under the law was limited to biological sex, Kallman argued.

Kallman asked Murray to rule "sexual orientation" and "gender identity" were not protected categories under the Elliot-Larsen Civil Rights Act and prevent the department from investigating cases involving discrimination based on gender identity or sexual orientation. 

Murray said a 1990 Court of Appeals decision prevented the state from interpreting "sex" as sexual orientation. 

But since no other Michigan court has yet to address whether gender identity falls under "sex," Murray relied on federal court precedent to rule gender identity is a protected category under the Elliot-Larsen Civil Rights Act. 

"...if defendants determine that a person treated someone who 'identifies' with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing (Michigan Department of Civil Rights) procedures," Murray wrote. 

Nessel's appeal comes weeks after the ballot committee Fair and Equal Michigan submitted its petition signatures to the Bureau of Elections for a ballot initiative that would clarify that the Elliot-Larsen Civil Rights Act to include prohibitions on discrimination based on gender identity, sexual orientation or expression. 

Over they years, the GOP-led Legislature has resisted requests to change the law.