Bias against LGBT is on basis of ‘sex’

By Eli Savit, Mark Totten and Sam Bagenstos

Michigan Attorney General Bill Schuette was never going to win hero-of-the-year award for civil rights. But his actions last week to block LGBT persons from having the same protections as everyone else marked a new low.

His willingness to employ legal scare tactics — advising government officials, without a shred of justification, that they would face crushing, out-of-pocket lawsuits if they exercised powers given to them by the state Legislature — should profoundly disturb anyone who cares about the rule of law.

Here’s the story. In Michigan, the Elliott-Larsen Civil Rights Act prohibits discrimination because of “religion, race, color, national origin, or sex.” Michigan’s language is identical to the language in federal law, and in other states. And in many of those jurisdictions, agencies and courts have held that discrimination against LGBT people is discrimination on the basis of “sex.”

The logic: it is impossible to discriminate against someone on the basis of sexual orientation or gender identity without considering that person’s sex. For example, if a man is fired from his job because he is attracted to men—but a woman attracted to men would not have been fired — the man, quite literally, has been fired because of his sex.

Michigan has never definitively resolved whether Elliott-Larsen’s prohibition on discrimination “because of sex” protects LGBT people. The law makes clear, however, that Michigan’s Civil Rights Commission is empowered to answer that question.

When enacting Elliott-Larsen, the Legislature authorized the commission to “promulgate ... rules to carry out this act.” The Michigan Supreme Court has made unquestionably clear that this authority includes the power to issue interpretive rules that give precise meaning to words in the Act. This function is hardly unique: it’s a role carried out every day by thousands of administrative bodies like the commission across state and federal government.

Accordingly, over the past few months, the commission has considered clarifying that Elliott-Larsen permits persons discriminated against because of their LGBT identity to allege discrimination on the basis of sex. That the commission would consider this clarification is hardly surprising, as courts and similar commissions around the nation have already done so.

Enter Bill Schuette. At the commission’s September meeting, and speaking through his assistant attorney general, Schuette (who serves as the commission’s lawyer) said he does not agree that the phrase “because of sex” protects LGBT people. Fair enough — although the consensus is moving in the other direction, Schuette is entitled to his view and to advise the commission accordingly.

But Schuette didn’t stop there. He went on to tell the commissioners that if they adopted a contrary interpretation, they would violate the law and lose the special protections that prevent others from suing them and holding them personally liable. He repeated that admonition last week, when the commission again met to decide whether Elliott-Larsen protects LGBT rights.

How do you think the commissioners responded? With fear and hesitation, as most anyone would. No one wants to face a costly lawsuit. And no one wants to do anything that might put their families, homes and life savings at risk. Faced with the threat of personal liability, the commission declined to exercise its power to clarify the precise scope of Elliott-Larsen’s sex-discrimination provision.

On the personal-liability question, however, Schuette is patently wrong. Thirty legal experts from across the state signed a letter to the commission saying so. Michigan law immunizes government servants from lawsuits when acting within the scope of their authority and carrying out a governmental function. The Michigan Legislature expressly empowered the commission with the task of interpreting and administering the Elliott-Larsen Civil Rights Act. It’s difficult to find a better example of when a government officer would qualify for immunity.

As attorney general, Schuette has an important role to play advising the commission. If he disagrees with its interpretation, he can even voice his opposition when the courts eventually have the final say. But what he cannot do is prevent the commissioners from carrying out the powers and responsibilities given to them by the Legislature. He can persuade, but he can never intimidate the commission — his client — with threats that have no basis in law.

Schuette should withdraw his misleading advice immediately and let the commission proceed.

Eli Savit is adjunct professor of law at University of Michigan Law School. Mark Totten is associate professor of law at Michigan State University College of Law. Sam Bagenstos is professor of law at University of Michigan Law School. All three authors testified last week before the Michigan Civil Rights Commission.