Mich. Law Doesn’t Shield LGBT Workers, Attorney General Says (1)

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By Alex Ebert

Michigan law doesn’t protect LGBT workers from discrimination based on their sexual orientation or gender, Michigan’s attorney general said in a July 20 opinion.

The opinion by Attorney General Bill Schuette undercuts the state Civil Rights Commission’s earlier reinterpretation that “sex” in the Wolverine State’s 1976 Elliott-Larsen Civil Rights Act covers LGBT workers. The state commission was the first in the nation to interpret a state law’s anti-sex discrimination law to cover LGBT bias.

Schuette’s opinion says the commission didn’t have the authority to expand the law “because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan courts.” Schuette, who is running for governor, signed the opinion himself.

Decades of Debate

For decades, Democrats have been trying to extend the law to ban discrimination against LGBT people in housing and employment. Those attempts never advanced.

That was until last year when civil rights group Equality Michigan asked the Department of Civil Rights for an interpretive statement as to whether the state could include sexual orientation and gender identity within the meaning of “sex.”

In May, the commission voted that Michigan’s roughly 350,000 LGBT citizens could bring employment discrimination complaints. At the time, Agustin Arbulu, executive director of the Michigan Department of Civil Rights, said the commission had to turn away those cases—a fact he called “exceedingly antiquated.”

The state commission and Equality Michigan didn’t immediately respond to requests for comment.

Like other originalist interpretations of law, the attorney general opinion relies upon the meaning of words at the time a statute was passed. “The word ‘sex’ was understood in 1976, when ELCRA was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identify,” the opinion says.

Michigan LGBT advocates see it differently—as an attack on LGBT rights.

“For too long, Bill Schuette has used his public office, which is supposed to be used to protect Michiganders, as a sword to cut down any effort to expand freedom and equality to the LGBTQ community. It’s disgusting,” Lonnie Scott, executive director of Progress Michigan, said in a July 20 statement. “This means LGBTQ Michiganders still can be fired from their job and denied housing and public services.”

Investigations Hang in the Balance

The opinion is a victory for the “rule of law,” attorney David Kallman told Bloomberg Law. But the next step still has to be taken by the commission, which meets July 23 and has to decide how it will react to the opinion.

Kallman represents Republican legislators who had requested Schuette’s input to nix the interpretation.

“The underlying issue is that you can’t have state agencies, whatever the issue is, making up their own laws,” he said. “That would lead to anarchy.”

The commission has received at least eight complaints of LGBT discrimination and has begun investigations in two, he said. He expects the commission to acknowledge that it’s either going to start a legal battle or drop those investigations.

“If they choose not to, then I guess we’ll have lawsuits flying all over the place,” he said.

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