Nessel has support from her past opponents in latest LGBTQ rights fight

Ahead of Attorney General Dana Nessel’s argument before the Michigan Supreme Court Wednesday defending protections for sexual orientation in the Elliott-Larsen Civil Rights Act (ELCRA), she has the support of the legal team who opposed her on one of the biggest LGBTQ cases in Michigan history years ago. 

“It’s wonderful. I think state government should be there to protect its residents, not to persecute them,” said Nessel, who is the first openly gay person to hold a top statewide office in Michigan. “And it was something that was so upsetting to me during the course of the DeBoer case to have my own government fighting against hundreds of thousands of people in the state who identify as LGBT and trying to eviscerate our rights.” 

In 2012 before Nessel was the state’s highest ranking attorney, she represented Jayne Rowse and April DeBoer, a Hazel Park couple, who sued the state for banning adoption by same-sex couples. 

Then-Gov. Rick Snyder was the chief defendant in the DeBoer v. Snyder case and then-Attorney General Bill Schuette defended the state’s anti-LGBTQ stance. But now, the majority of the team behind Schuette in that case is supporting Nessel in expanding LGBTQ protections in the Elliott-Larsen act.

On Wednesday, Nessel will appear before the Michigan Supreme Court, on behalf of the Michigan Department of Civil Rights (MDCR), to challenge an October 2021 ruling from the Court of Claims in the Rouch World LLC et al v Michigan Department of Civil Rights et al case.

In 2018, the Michigan Civil Rights Commission (MCRC) adopted an interpretive statement that “sex,” as used in the Elliott-Larsen act, included protections for individuals on the basis of sexual orientation and gender identity. 

But businesses that denied services to customers who were either a same-sex couple or an individual who was transitioning their gender identity filed suit in the Rouch World LLC case, asking the court to determine whether the Department of Civil Rights had jurisdiction to investigate complaints based on sexual orientation or gender identity and argued that this is not covered under ELCRA. 

“Our argument is, essentially, that sexual orientation is included in that definition, because you cannot know someone’s sexual orientation without knowing one’s sex,” Nessel said. 

The Court of Claims judge ruled that sexual orientation does not fall within the meaning of sex under ELCRA because of a 1993 Court of Appeals ruling in Barbour v Department of Social Services. The plaintiff in the Barbour case claimed he was harassed by coworkers because of his sexual orientation, which led him to leave his job. 

However, that decision was based on a federal precedent that is no longer valid after the U.S. Supreme Court decided in Bostock v Clayton Co. that discrimination based on sexual orientation is a form of sex discrimination.

The Bostock v Clayton Co. lawsuit was filed by Gerald Bostock, a gay man from Clayton County in Georgia, who was unrightfully fired from his job after his employer found out his sexual orientation. 

The SCOTUS decision in the Bostock case could be influential for the state’s Supreme Court in the Rouch World LLC et al v Michigan Department of Civil Rights et al case, Nessel said. 

“Because the language of Elliott-Larsen is so similar to the language in Title VII, and because the Barbour decision was based on the federal interpretation of Title VII, I think the question isn’t why should the Michigan Supreme Court follow the lead of the United States Supreme Court and make the same analysis,” Nessel said. “It’s really, why shouldn’t they?”

There have been a number of attempts to expand ELCRA through bills and a ballot initiative, but neither of those avenues were successful.