LGBTQ+ Michiganders may not be protected from discrimination under the Michigan Constitution, a gap in civil rights now fervently trying to be patched.
Under the Elliott-Larsen Civil Rights Act, discrimination based on sex is prohibited. However, the definition of sex under this statute has never fully been fleshed out. Because of this, Equality Michigan, a LGBTQ+ advocacy organization, asked the Michigan Civil Rights Commission to issue a ruling on the definition back in September. Though it was set to make a ruling broadening the definition to explicitly include gender identity and sexual orientation, the CRC voted to table it and requested the Attorney General’s opinion. Eli Savit, a University of Michigan law professor and legal aide in the efforts, said he believes Michigan Attorney General Bill Schuette — a current Michigan gubernatorial candidate — abused his power to prevent this from happening.
“The Attorney General’s office parachuted in at the last minute and informed them that the ruling that was requested by Equality Michigan was not correct and the commissioners would potentially face personal liability,” Savit said.
After hearing how Schuette handled the process, Savit said his sensibilities were offended both as someone who believes in protections for LGBTQ+ people and as someone who believes in the rule of law. After writing an article for Slate detailing his experiences, he got 27 fellow lawyers and legal professionals, including fellow University law professors and those at other universities, to sign a letter more recently, claiming what the attorney general said was legally unjustified.
In the letter, signees expressed concern over Schuette's action undermining state legal order.
“An assistant attorney general cannot usurp that authority by issuing an “informal” oral interpretation,” the letter says. “Nor is there any legal support for the proposition that the Commission forfeits governmental immunity if it disagrees with an “informal” interpretation offered by an assistant attorney general.”
Threatened by the possibility of a personal attack on their families and assets, the Civil Rights Commission did not end up issuing a ruling, leaving many LGBTQ+ Michigan residents unsure as to whether or not they are protected against discrimination. There are, however, bills pending, including Senate Bill 424 and House bill 4689, that would provide protections by banning discrimination based on sexual orientation and gender identity or expression.
The timing and topic of this issue implied to Savit that Schuette doesn’t want to broaden the rights of LGBTQ+ people in Michigan. Savit said this is the only time Schuette has ever tried to “neuter the commission’s ability” and he doesn’t think the choice to do so now is coincidental.
“He just wanted this issue dead and out of the spotlight and he's using this very roundabout way of doing so,” Savit said. “He doesn’t have to take a position, he doesn’t have to go into court, he's just trying to muzzle the commission and stop them from doing their job.”
According to Savit, if the commission decides the Elliott-Larsen Civil Rights Act does protect LGBTQ+ people, those who have been discriminated against are going to start filing complaints. Some of those complaints would likely go through the court system — something Schuette wouldn’t want to happen.
Schuette did not respond to requests for comment by The Daily.
“The ACLU did a study that suggested there have been several hundred documented instances of discrimination against LGBTQ people that were not addressed or could have been addressed if the commission issued this ruling,” Savit said. “And these are just the people that come forward.”
Agustin Arbulu, executive director of the Michigan Department of Civil Rights, agreed with Savit and said it seems as though Schuette is trying to avoid any process that could result in constitutional protection.
“I don’t think the AG wants to expand the meaning of sex and I prefer not even to use the word sex,” Arbulu said. “I think the AG’s office interprets sex not to include gender identity and sexual orientation and that is the matter that is left to the legislature.”
As disturbing as the lack of protection against discrimination is to many, others are fearful of the precedent Schuette is setting by incorrectly taking away the commission’s power. According to Savit, he is blatantly misinterpreting the law in saying the commission can’t make a ruling on the statute.
“The legislature set up a system in which the commission is charged with interpreting the law in the first instance,” Savit said. “They can ask the AG what his advice is because he serves as their lawyer. But ultimately the interpretive call is the commissions and not the AG’s. And that’s what makes this so disturbing because what the AG is trying to do is displace the commission's authority.”
Without a broadening of this statute, Savit and others said LGBTQ+ people could easily be discriminated against.
“The commission heard testimony from LGBTQ people from across the state of Michigan; some said they had been fired from their job because of their sexual orientation or gender identity, some said they had been kicked out of bars,” Savit said. “Those are things that would be prohibited by the law if it indeed the commission ruled the law protects LGBTQ people.”
LSA senior Emily Kaufman, president of LGBT Michigan, said the fear of being discriminated against without any way to defend herself legally is something she thinks about often.
“Being legally discriminated against is something that I think about a lot,” Kaufman said. “I’m blessed to have never faced this type of discrimination in the workplace or in housing, but I know that I am not protected in the state of Michigan and I know that I could be discriminated against, legally, at any time. Without these basic rights free from discrimination, transgender people are second class citizens.”
Additionally, Kaufman said a lot of these fears aren’t hypothetical.
“In (Pennsylvania), my friend was fired from her job after she came out and a friend here in Michigan is afraid to come out to coworkers for fear of losing his job.”