Legal status of gender identity and expression protections unclear

By Shoham Geva, Daily Staff Reporter
Published November 19, 2014

Among the many points of contention between the two amendments to the state’s Elliott-Larsen Civil Rights Act currently before the Michigan legislature, a primary one is the inclusion of gender identity and expression.

Gender identity is defined as an individual’s psychological sense of their gender, according to the Human Rights Campaign. For transgender people, their gender identity is different than their biological sex assigned at birth. Gender expression refers to the way individuals display their gender identity.

The first bill, introduced in September by Rep. Sam Singh (D–East Lansing) and Sen. Rebekah Warren (D–Ann Arbor), proposes protections for sexual orientation, and gender identity and expression. Both are not explicitly included in the current act, which shields Michigan residents from discrimination on the basis of religion, race, color, national origin, age, sex, height, weight, familial status and marital status. The bill that Rep. Frank Foster (R–Petoskey) introduced last week, on the other hand, only calls for the inclusion of sexual orientation.

The Democrat-introduced amendment would protect, for example, an employee whose gender identity does not match their biological sex from getting fired for identifying as transgender.

State Republicans, most prominently Speaker of the House Jase Bolger (R–Marshall), have said the inclusion of gender identity and expression is unnecessary because transgender individuals are already offered protections under the mandate against sex discrimination in state and federal civil rights laws.

Democrats, on the other hand, have said the amendment is necessary for the protections of transgender peoples to be included. In an interview last week following the introduction of Foster’s bill, State Rep. Adam Zemke (D–Ann Arbor), who co-sponsored Singh’s bill, called Bolger’s interpretation of the issue incorrect.

“With all due respect to Speaker Bolger, he’s mistaken in that regard,” Zemke said. “Discrimination, as it’s enumerated under Elliott-Larsen, is often handled as a state’s rights issue and that’s what we’re seeing here, and that’s what we’re trying to push forward.”

When it comes to the nuances of the current legal record on gender identity and expression protections, the short answer is that the Democrats and the GOP are both right and also both wrong in some respects.

The long answer is that the legal status of those protections is complicated but facing undeniable uncertainty for a number of reasons, according to practicing employment discrimination lawyers and experts in the state.

Employment discrimination plaintiffs in Michigan have two options for recourse available to them: to file in the state’s courts under ELCRA or to file in the federal court system under either the 1964 Civil Rights Act or both the Act and ELCRA.

Trial attorney Charlotte Croson is a partner at the Bingham Farms-based law firm Bogas, Koncius & Croson, which focuses on civil rights litigation.

Croson said there are several reasons a lawyer and plaintiff might choose to file in state court as opposed to federal court when it comes to employment discrimination cases, and vice versa. The process and legal precedent for two court systems differ.

“Michigan discrimination case law differs in some significant ways from federal discrimination case law,” Croson said. “It’s sort of a lot to go through, but there are differences, so it’s up to the lawyer and her client to determine which venue is appropriate for them to be in.”

Much of the uncertainty that specifically concerns gender identity and expression protections comes from the difference in case law — a term for legal precedent — on the state and federal level.

In 1989, in Price Waterhouse v. Hopkins, the U.S. Supreme Court ruled that protection against sex discrimination, as outlined in Title VII of the 1964 Civil Rights Acts, also encompassed the concept of sex stereotyping — discriminating against individuals because they were perceived to not conform with traditional stereotypes for their gender. Though the case did not include a transgender plaintiff, two federal appeals courts have employed its precedent in cases that directly reference gender identity and expression protections.

One of those courts was the U.S. Sixth Circuit Court of Appeals — which includes Michigan in its jurisdiction — when it ruled in favor of a transgender plaintiff in 2004 for Smith v. City of Salem. This means that, as of 10 years ago, it is possible to sue for transgender protections under sex discrimination in federal courts in Michigan, Ohio, Kentucky and Tennessee.

It is also true that, in 2012, the U.S. Equal Employment Opportunity Commission found in the case of Macy v. Holder that discrimination on the basis of gender expression or identity is included in Title VII’s protections against sex discrimination. The EEOC is the federal agency charged with enforcing laws against employment discrimination, litigating and investigating on behalf of individuals whose claims they deem valid.

Broadly, the 2012 decision means that if the EEOC receives a claim of discrimination from a transgender individual, they are now able to pursue it under the mandate against sex discrimination nationwide.

In an e-mail follow-up, Bolger spokesman Ari Adler noted several legal citations for the Speaker’s position, namely both the 1989 Hopkins Supreme Court decision and the 2012 EEOC Macy decision, along with several cases in the Sixth Circuit, starting with 2004 Smith.

Law Prof. Samuel Bagenstos said there is set precedent on the federal level because of cases like Smith and Macy. He noted, however, that overall precedent on the issue is still developing, leaving uncertainty about what may eventually be determined by a higher court.

Fewer than 10 district courts and one appeals court across the country have also ruled in favor of including the protections.

That’s a small chunk of the 94 district courts and 13 appeals courts, which would rule on the issue. Moreover, the U.S. Supreme Court has yet to rule on the issue.

“There is a series of cases that do this — it is, as I said, a trend that’s moving forward,” Bagenstos said. “It’s not entirely certain which way the courts are going to ultimately go on these questions.”

But the most immediate lack of clarity for Michigan plaintiffs lies in what that evolving discussion on inclusion at the federal level means for the state courts, who currently have no precedent set specifically for offering gender identity and expression protections under sex discrimination.

These are also the rulings that most directly impact ELCRA, the act currently being discussed for amendment by legislators.

While state courts can be aware of federal precedent, such as that set in the Sixth Circuit, they are not obligated to follow it. Whether the EEOC will represent a certain group in court also is not binding to state or federal precedent.

Trial lawyer Deborah Gordon, former president of the Labor & Employment Council of the State Bar of Michigan, said that, in her experience, the EEOC is ahead of the courts when it comes to these kinds of issues.

“If (Bolger) is talking about an EEOC advisory, or something the EEOC has ruled, that and a dollar will get you a candy bar,” Gordon said. “I mean, the only thing that matters in court is cases from judges.”

In further explanation of Bolger’s position, Adler noted several state cases that set precedent for gender stereotyping to be covered under sex discrimination — for instance, a man who identifies as male but does not act “masculine enough” being rejected for housing. Now, in Michigan, a case in which that definition is extended to a transgender person must occur in order to set precedent that ELCRA applies to gender identity and expression.

This is similar to the path cases took on the federal level to set precedent, but Adler acknowledged that no state cases as of yet have directly concerned transgender plaintiffs.

Bolger is confident that the state courts would adopt the federal stance and wasn’t concerned about any uncertainty, Adler confirmed.

However, both Croson and Gordon said the lack of precedent in state courts does not ensure success for the transgender plaintiffs seeking gender identity and expression protections.

“In order for (the transgender plaintiff’s) claim to be protected under Michigan law, Michigan courts would have to adopt the same reasoning as the Sixth Circuit has adopted, which it has not yet done,” Croson said. “Will it do that? I do not know. So for the Speaker to assume that sex (discrimination) under Elliott-Larsen would have the same meaning as the case law as it’s been developed in the Sixth Circuit, I think is a stretch.”

Croson noted that Michigan courts haven’t necessarily been active in declining to adopt the Sixth Circuit’s reasoning; rather, it’s not an issue that’s been addressed.

“I’ve never seen a case on it,” she said. “They haven’t rejected it, they haven’t adopted it. It hasn’t — as far as I can tell, under Michigan law, it hasn’t been an issue.”

Bagenstos said overall, whether to go through the courts or to go through the legislature to add these types of protections is a question of political and legal strategy.

However, he said existing precedent and case law don’t offer the same kind of protection direct legislative inclusion of gender identity and expression in ELCRA would.

“There is a very substantial legal argument that the sex prohibition discrimination in existing laws do protect individuals who are discriminated against based on their gender identity, but it’s uncertain how the courts will ultimately rule,” he said. “The only way to be sure to provide protection to transgender individuals is to make clear in the law that the law prohibits discrimination based on gender identity.”