Michigan LGBT rights fight divides GOP, Dems

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — The Michigan Civil Rights Commission lacks the authority to “circumvent” the Legislature and apply existing anti-discrimination protections to gay and transgender residents, according to a group of House and Senate Republicans urging the panel to reject a request for a new interpretation of an old law.

Equality Michigan asked the commission last month to consider whether it should investigate “sexual orientation” and “gender identity” complaints under the umbrella of “sex” discrimination already prohibited under the Elliott-Larsen Civil Rights Act of 1976, which offers protections in the workplace, housing market and public accommodations.

The request “exposes a transparent attempt by the authors to circumvent politically accountable, elected legislators who hold the constitutional authority to enact and amend laws in our state,” 10 Republican legislators said in a response and issue brief submitted Tuesday, the last day of a public comment period.

The request appears to have broad support from the other side of the aisle. In two letters, 41 House and Senate Democrats urged the commission to adopt the interpretive statement absent action by the GOP-led Legislature to expand the law through statute.

“The political outcry towards expanding Elliott Larsen to include LGBT folks indicates that discrimination is both prevalent and real,” said Rep. Jon Hoadley, D-Kalamazoo, who authored a letter signed by 31 colleagues. “The commission has an additional obligation to act, because that is their charge, to deal with discrimination.”

The eight-member civil rights commission, appointed by Republican Gov. Rick Snyder, is expected to review comments and deliberate on the matter at a Sept. 18 meeting in Lansing. They could approve the request, reject it or postpone a decision to seek more information, according to a spokesperson.

Equality Michigan’s request for an interpretive statement on sex discrimination cites a growing number of federal department decisions and court rulings that have expanded the scope of workplace protections under Title VII of the Civil Rights Act of 1964.

State law and administrative code gives the commission “the authority to issue such a statement,” which would “provide LGBT Michiganders with access to the Commission’s administrative remedies when they face discrimination,” Equality Michigan said.

But the analysis is “legally incorrect and misleading,” said Republican legislators, including state Sen. Pat Colbeck of Canton Township, who is running for governor and seeking the 2018 GOP nomination, House Speaker Pro Tem Lee Chatfield of Levering and Rep. Gary Glenn of Midland, who has argued gay and transgender protections could themselves prove discriminatory against religious individuals and groups.

The brief, filed by the Great Lakes Justice Center on behalf of GOP legislators, contends that state law only allows the commission to make “recommendations” to the governor, not issue statements that carry the force of law.

The commission last issued an interpretive statement in 2012 clarifying a state law governing sign language interpreters.

“Our legal team says unequivocally that they do have the authority to issue an interpretive statement” on the type of discrimination complaints they can investigate, spokeswoman Vicki Levengood told The Detroit News.

She said more than 300 public comments had been submitted as of Tuesday afternoon, and likely more had come in by the midnight deadline. They will be posted online for review ahead of the commission’s Sept. 18 meeting.

The civil rights commission was created through Michigan’s 1963 constitution and empowered to investigate alleged discrimination based on various factors, including religion, race, color and national origin. The 1976 law added protections for sex, age, disabilities and more.

Under former President Barack Obama, the Equal Employment Opportunity Commission ruled in 2012 that transgender job discrimination was a form of sex discrimination under Title VII of the federal Civil Rights Act.

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.

But earlier this year, the Department of Justice under President Donald Trump split with the Equal Employment Opportunity Commission in an appeals court case, arguing that Title VII does not protect against sexual orientation discrimination and suggesting efforts to amend the law should be directed to Congress, not the courts.

Previous federal department and court decisions on workplace protections are nonbinding in Michigan, according to the Republican legislators, who noted the state civil rights law is more expansive than the federal version in question because it also applies to housing and public accommodations.

“Nothing in Michigan law supports (Equality Michigan’s) broad claim that an interpretive statement would be legally binding and enforceable against Michigan businesses and citizens if passed by the MCRC,” they said.

“Any attempt to enact and enforce such legislation under the guise of an interpretive statement will be rejected as unlawful by our courts.”

Equality Michigan has long urged expansion of the state’s anti-discrimination law and praised bills introduced this year by state Sen. Rebekah Warren, D-Ann Arbor, and Rep. Hoadley, D-Kalamazoo. The group says it has been 33 years since a gay rights amendment was first proposed.

At least 11 bills to expand Elliott-Larsen have been introduced since 1999 and none have been approved, according to Republican legislators, who called the new request an attempt to “sneak in through the back door.”

The Michigan Civil Rights Commission must reject the invitation to interpret the anti-discrimination law “to mean things our legislature has explicitly rejected,” they said.

Even if the commission agrees with the request, it “has constitutional duty to enforce the laws passed by the legislature, not make up its own laws,” David Kallman, senior counsel with the Great Lakes Justice Center, said in a statement.

While Democrats have continued to propose changes to the law, Michigan’s Republican-led Legislature last considered expanding the Elliott-Larsen Civil Rights Act in 2014. A House panel took testimony but did not vote on a proposal that House GOP leadership wanted to pair with a state-level Religious Freedom Restoration Act.

“Give us a day when you want to have a hearing on the legislation and we will be there to tell our stories,” Hoadley said. “Remarkably, the same legislators who say we’re not acting aren’t even bringing up the bills.”

Senate Minority Leader Jim Ananich of Flint and House Minority Leader Sam Singh of East Lansing were among Democrats who signed letters supporting the Equality Michigan request.

Other Republicans opposing the request include Sens. Judy Emmons of Sheridan, Mike Green of Mayville, Dave Robertson of Grand Blanc, Mike Shirkey of Clarklake and Reps. Tom Barrett of Potterville, Jeff Noble of Plymouth and Jim Runestad of White Lake Township.