Michigan’s highest court ruled Thursday that a 1976 law prohibits firing, deporting or any other form of discrimination against someone for being a member of the LGBTQ community.
The 5-2 decision is a substantial shift in state policy that supporters say will have a real impact on people’s lives. Announced by Governor Gretchen Whitmer, other politicians and key business leaders, the real impact of the decision lies both in the implementation and in the corresponding legislative changes it could bring about.
Here’s a breakdown of what the order says, what it means and how it could affect the Michiganders in the future.
After:Michigan Supreme Court: Law prohibits discrimination based on sexual orientation
After:Nessel to Supreme Court: Michigan law clearly prohibits discrimination based on sexual orientation
What the law says?
The Elliott-Larsen Civil Rights Act, first passed in 1976, covers a wide range of discrimination.
The law states in part: “The opportunity to obtain employment, housing and other real estate, and the full and equal use of public housing, public services and educational facilities without discrimination based on religion , race, color, national origin, age, sex, height, weight, family status or marital status prohibited by this law, are recognized and declared to be a civil right.
How does this decision affect the law?
The Michigan Supreme Court determined that the Elliott-Larsen Civil Rights Act, as written, prohibits discrimination based on sexual orientation, pointing to the portion of the law that expressly prohibits discrimination based on sex.
The majority of judges determined that it is impossible to discriminate against someone because of their sexual orientation without also discriminating based on gender.
“The determination of sexual orientation involves both the sex of the individual and the sex of their preferred partner; referring to these considerations together as ‘sexual orientation’ does not remove sex from the calculation,” wrote Justice Elizabeth Clement, a Republican, for the majority.
What about gender identity?
The underlying cases that prompted this decision involved both sexual orientation and gender identity discrimination. Although the Michigan Supreme Court case focuses specifically on sexual orientation, the decision also repeatedly references gender identity and presents arguments that indicate it is also likely covered by law. on civil rights Elliott-Larsen.
The Michigan Department of Civil Rights previously issued a directive in 2018 stating that discrimination based on gender identity violates the law. Michigan’s Court of Claims agreed, specifically citing a U.S. Supreme Court ruling that it is partly “impossible to discriminate against a person because they are gay or transgender without discriminating against that person because of their sex.” “.
The state Supreme Court relied heavily on this federal ruling in its own decision. He repeatedly noted that the definition of sex is broad, emphasizing the expansive nature of the term in law through several footnotes.
“We agree that discrimination on the basis of sexual orientation necessarily involves discrimination on the basis of gender stereotypes, and we believe that this theory could serve as an alternative basis for arguing that gender discrimination occurred in this case” , reads a footnote.
Another notes that the outcome of this case would not have been different if the defendants involved had been bisexual.
“A discriminator cannot escape liability for sex discrimination on the basis that the individual discriminated against has a sexual orientation which the discriminator finds acceptable in addition to a sexual orientation which the discriminator does not find acceptable,” the notice states. .
All of these standards could be applied to gender identity, and the state’s Department of Civil Rights plans to continue to investigate related claims of discrimination.
“On May 21, 2018, the Michigan Civil Rights Commission released an interpretative statement declaring that the word ‘sex’ in Michigan’s Elliott-Larsen Civil Rights Act encompasses gender identity and sexual orientation,” Michigan Civil Rights Commission Chairperson Portia Roberson said in a statement. issued immediately after the court’s decision.
“The commissioner’s courageous decision allowed the Michigan Department of Civil Rights to accept claims of gender discrimination from Michigan’s LGBTQ community. We knew the ultimate test could come in the courts, and today the values of equity and inclusion won over the votes that would forever keep our LGBTQ neighbors in the shadows of society.”
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What is the practical impact of the decision?
Anyone who believes they have been discriminated against based on their sexual orientation and gender identity can file a complaint with the Michigan Department of Civil Rights.
The department regularly investigates allegations of discrimination, working with the person complaining and the accused to try to find a solution. More information about the complaint process and an online portal to file a complaint is available on the department’s website, www.michigan.gov/MDCR.
What are companies and the Catholic Church saying?
Many leading business organizations have already supported protections for the LGBTQ community.
“This decision is a positive development for Michigan in its ongoing battle to attract and retain talent,” said Sandy Baruah, president and CEO of the Detroit Regional Chamber.
“Attracting and retaining talent remains a top concern for Michigan employers, and onboarding policies like this help meet that challenge.”
Jeff Donofrio, president and CEO of Michigan Nonprofit Business Leaders, agreed.
“Our employees are the lifeblood of our businesses – and this ruling ensures that Michiganders cannot be discriminated against based on sexual orientation or gender identity. The Michigan Supreme Court ruling makes Michigan a Stronger and more competitive state,” Donofrio said in a statement.
The Michigan Catholic Conference was not so pleased.
In a statement, the leaders argued that the decision usurps the role of the legislature to create state laws and raises potential constitutional issues relating to “religious liberty.”
“We hold that marriage is the union of a man and a woman united in life and open to the birth of children, even as society and culture have recently moved in a historically different direction. Christians are not called to conform to culture, but to speak to it with truth and love,” said an unattributed statement released by the conference.
“We will continue to uphold religious freedom rights and seek to uphold constitutional principles that provide legal protections to those who serve others in the public square – especially the poor and vulnerable – based on their religious mission. “
And the politicians?
Democratic lawmakers rejoice, while many Republicans remain silent.
“As a mother, governor and proud ally of the community, I am very grateful for this decision. This will save lives, protect families and help ensure that every Michigander is treated with dignity and respect under the law,” Governor Gretchen Whitmer said in a statement.
“For too long, LGBTQ+ Michiganders have been excluded from our state’s civil rights protections. Not anymore. Because of this ruling, no one can legally be fired from their job or kicked out of their home because of who they love. .”
State Sen. Jeremy Moss, D-Southfield, has spent years advocating for legislation to expressly include in the law language prohibiting discrimination based on gender identity and sexual orientation. He told the Free Press that the court’s decision was surreal.
“We knew all along that LGBTQ people are dignified, that our work brings value. That we should be able to comfortably seek employment and housing here in Michigan without discrimination,” Moss said.
“And now that the Supreme Court has said we’re on the right side of that argument, it should only continue our efforts to enshrine some of those protections that are still threatened by a fringe both in the state legislature and on the Supreme Court of the United States.”
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Wait, isn’t the court’s decision final?
The decision is final, but Moss noted that a future tribunal with different judges may come to a different conclusion.
The ruling only further underscores the need to expressly include the terms “sexual orientation” and “gender identity” in the law, Moss said, echoing comments from many other advocates. He said that once the Legislative Assembly returns in September from its summer recess, he will again push for lawmakers to take up his bill that would add this language to the Elliott Civil Rights Act- Feedback.
“I’ve always said this: if my bill were put to a vote, it would pass the Legislative Assembly. It’s a huge minority opinion to continue to discriminate against the LGBTQ community in the employment, housing and services,” Moss said. said.
He specifically pointed to Senate Majority Leader Mike Shirkey, R-Clarklake and other Republican legislative leaders as the reason his bill did not go to a vote. Pointing to Shirkey’s actions to derail a memorial resolution recognizing Pride Month in Michigan, Moss said some lawmakers just wanted to be divided.
“I expect the Legislative Assembly hate caucus to continue to attack members of our community,” Moss said.
In a statement, Shirkey said he respects the court’s decision but is concerned about some effects of the ruling.
“Everyone deserves to be treated with dignity and respect. This includes those with strongly held religious beliefs,” Shirkey said.
“My great hope is that in the future, our society, laws and court decisions will recognize our faith institutions and communities with the respect, dignity and rights that are clearly given to them by our Constitution.”
Contact Dave Boucher at [email protected] or 313-938-4591. Follow him on Twitter @Dave_Boucher1.