Published in Economic Development

Michigan’s push to expand LGBTQ civil rights comes amid key federal lawsuits

BY Sunday, June 09, 2019 07:00pm

State lawmakers are pushing once again to expand civil rights protections for the lesbian, gay, bisexual and transgender community as key legal cases on the issue sit before the U.S. Supreme Court.

To kick off Pride Month, Gov. Gretchen Whitmer announced legislation with Democratic lawmakers in the state House and Senate to expand the state’s Elliott-Larsen Civil Rights Act of 1976 to prohibit discrimination based on sexual orientation and gender identity. 

Michigan Gov. Gretchen Whitmer COURTESY PHOTO

The law offers protections in the workplace, housing and public accommodations based on religion, race, color, national origin, age, sex, height, weight, or familial or marriage status.

For years, lawmakers and major companies in Michigan have pushed legislation to include sexual orientation and gender identity in Elliott-Larsen. Whitmer and former Gov. Rick Snyder both have called for the expansion in State of the State speeches. 

However, the efforts have been stymied by the Republican-held state Legislature. Senate Majority Leader Mike Shirkey and Speaker of the House Lee Chatfield have reportedly said the latest push would not be a priority for them unless legislation includes religious exemptions. At least one House Republican — state Rep. Tommy Brann of Wyoming — reportedly supports the expansion.

Supporters argue the expansion is long overdue. Public opinion is strongly against discrimination based on sexual orientation and gender identity, while supporting diversity can be an economic driver for a state trying to attract and retain talent.

“We must all press forward to ensure Michigan steps up to the forefront of advancing civil rights for LGBTQ individuals, and that includes expanding the Elliott-Larsen Civil Rights Act to protect everyone, no matter their sexual orientation or gender identity,” Whitmer said in a statement. “Nobody should lose their job or their home because of who they are or who they love. Making Michigan a more open, inclusive state benefits our communities, our businesses, and our economy.”

Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Project, said Michigan is one of 29 states that lack specific civil rights protections based on sexual orientation and gender identity. 

“We need to make that clear once and for all,” Kaplan said, adding that it would be “of great concern to us” if Republican lawmakers attempted to add religious exemptions to the legislation. 

“If you exempt people from complying with civil rights laws, you end up gutting those civil rights laws,” he said.

Federal lawsuits

The move also comes as litigation involving discrimination based on sexual orientation and gender identity heads before the U.S. Supreme Court. One case involves Aimee Stephens, a transgender woman in Michigan who was fired from her job at a funeral home amid her transition from male to female. 

The question is whether the definition of “sex” in Title VII of the federal Civil Rights Act of 1964 includes protections for sexual orientation and gender identity. The U.S. Sixth Circuit Court of Appeals last year unanimously ruled in favor of Stephens that transgender status is “necessarily” discrimination based on sex. 

“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court ruled.

John Bursch, a high-profile attorney in Michigan representing the funeral home through Alliance Defending Freedom, told the New York Times in April that federal courts can’t “rewrite federal law” and replace “sex” with “gender identity.” Previously Bursch, whom former Attorney General Bill Schuette appointed as solicitor general, unsuccessfully defended Michigan’s ban on same-sex marriage before the U.S. Supreme Court.

“The funeral home wants to serve families mourning the loss of a loved one, but the E.E.O.C. has elevated its political goals above the interests of the grieving people that the funeral home serves,” Bursch said in April.

The U.S. Supreme Court later this year is expected to take up the Stephens case, along with two others in New York and Georgia. It will be the first time the conservative-leaning court will take up LGBTQ rights with Justice Brett Kavanaugh on the bench.

Under the Obama administration, the federal Equal Employment Opportunity Commission began taking complaints, and in some cases legal action, against employers who allegedly discriminated against employees based on sexual orientation and gender identity. The EEOC’s position was that such discrimination was illegal under the definition of “sex” in federal law.

However, the Justice Department under President Trump does not believe federal law applies to sexual orientation or gender identity.

“Given this (Trump) administration and their ability to appoint commissioners to the EEOC, we have reason to be concerned that they will not continue taking these complaints, fully investigating them and bringing charges when they find discrimination has occurred,” Kaplan said. “The U.S. Department of Justice has made it very clear they don’t believe LGBTQ people have those protections.” 

In her first week in office, Whitmer issued an executive order to ban discrimination in state government based on sexual orientation and gender identity. Snyder issued a similar order at the end of his second term, but it included religious exemptions.

Last year, the Michigan Department of Civil Rights also issued an interpretation that LGBTQ discrimination falls under the category of sex discrimination and gender stereotyping. Additionally, roughly 40 Michigan communities have local ordinances that specifically cover sexual orientation and gender identity. Residents can file complaints in these specific communities or with the Michigan Department of Civil Rights. 

Kaplan said expanding Elliott-Larsen makes it “absolutely clear” in Michigan that discrimination based on sexual orientation and gender identity is illegal.

He added that while he expects a “favorable outcome” at the U.S. Supreme Court, “if not, it’s going to make it even more pressing we need these specific categories of sexual orientation and gender identity” by expanding Elliott-Larsen in Michigan.

Employers leading

Increasingly, employers across Michigan are promoting diversity and being inclusive of the LGBTQ community. In 2014, the ACLU of Michigan helped lead the Michigan Competitive Workforce Coalition that included dozens of major employers across the state promoting LGBTQ rights and the expansion of Elliott-Larsen. An increasing number of companies are adopting nondiscrimination policies in the workplace.

The Grand Rapids Area Chamber of Commerce has advocated expanding Elliott-Larsen for about five years.

“It’s not only the smart thing to do, it’s the right thing to do,” said Andy Johnston, vice president of government and corporate affairs with the Grand Rapids Chamber. “We believe everyone deserves the right to show up as a whole person in all aspects of their life. Inclusivity is vital for Michigan to remain competitive when it comes to Michigan attracting and retaining top talent.”

Johnston said it will “probably be an uphill battle in this Legislature” to expand Elliott-Larsen. 

“But that’s not going to stop us from reaching out and having the conversation about why we think it’s important for the state of Michigan to get it done,” he added. 

Officials with the Michigan Chamber of Commerce did not respond to a request for comment. Business Leaders for Michigan’s “Plan for a Stronger Michigan” supports statewide policy to prohibit discrimination based on sexual orientation for employment “like we do for race, color, religion, sex, national origin or disability,” said BLM spokesperson Anna Heaton. She added that BLM has maintained the position since 2014.

Kaplan agrees that expanding Elliott-Larsen intersects with the state’s economy.

“Certainly, we’ve seen Michigan businesses play a leadership role in adopting LGBTQ-specific nondiscrimination policies,” Kaplan said. “It’s the right thing to do, but they also recognize that in order to attract and retain the best and brightest talent, the business world needs policies that support diversity of employees. Those are all strong arguments for amending Elliott-Larsen.” 


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