Advance Notice: Briefs

Nessel files brief with state Supreme Court to expand LGBTQ+ rights

By: - October 26, 2021 9:08 am

Susan J. Demas

Attorney General Dana Nessel, on behalf of the Michigan Department of Civil Rights (MDCR), is challenging a ruling from the Court of Claims that decided the Elliott-Larsen Civil Rights Act (ELCRA) does not prohibit discrimination based on sexual orientation. 

“All Michiganders are entitled to the same civil rights—the right to be free from actionable discrimination in employment, public accommodations and public services, housing, and educational facilities,” Nessel said in a brief filed Friday. “But too often and for far too long, lesbian and gay individuals have been denied these basic rights. This discrimination is offensive, demeaning, and brings with it stigmatizing injury and a deprivation of personal dignity.”

The lawsuit,  Rouch World LLC et al v Michigan Department of Civil Rights et al, was brought by businesses that denied services to customers who were either a same-sex couple or an individual who was transitioning their gender identity. 

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

In early 2020, plaintiffs filed suit, asking the court to rule that the MDCR has no jurisdiction to investigate complaints based on sexual orientation or gender identity and argued that this is not covered under ELCRA. 

Court of Claims Judge Christopher Murray, who was appointed by GOP former Gov. John Engler, sided with the MCRC’s interpretive statement that the ELCRA provides protections for gender identity, but does not protect against sexual orientation discrimination. 

Murray concluded a 1993 Court of Appeals ruling in Barbour v Department of Social Services states sexual orientation does not fall within the meaning of sex under ELCRA. However, that decision relied on a federal precedent that is no longer valid after the U.S. Supreme Court decided in Bostock v Clayton Co. that discrimination based on sexual orientation is a form of sex discrimination.  

“We’re arguing before the Michigan Supreme Court that all Michiganders are entitled to the same civil rights. It’s long past time for our State to recognize sexual orientation as protected from discrimination under the law,” Nessel said. 

Michigan has seen multiple attempts through bills in the Legislature and through a ballot initiative to expand ELCRA by adding sexual orientation and gender identity as protected classes. 

However, the bills have not made it out of committee. And the Fair and Equal Michigan petition was denied by the Board of State Canvassers in August. 

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Allison R. Donahue
Allison R. Donahue

Allison R. Donahue covers education, women's issues and LGBTQ issues. Previously, she was a suburbs reporter at the St. Cloud Times in St. Cloud, Minn., covering local education and government. As a graduate of Grand Valley State University, she has previous experience as a freelance researcher for USA Today and an intern with WOOD TV-8. When she is away from her desk, she spends her time going to concerts, comedy shows or getting lost on hikes in different places around the world.