Michigan Attorney General Contradicts State Civil Rights Commission and Walks Back LGBTQ Protections

By Shane Stahl • July 26, 2018 • 3:13 pm

An opinion written by Michigan Attorney General Bill Schuette on July 20 contradicted a recent decision by the state’s Civil Rights Commission that recognized that Michigan’s Elliott-Larsen Civil Rights Act, which prohibits discrimination based on “sex,” also prohibits discrimination based on sexual orientation and gender identity.

Schuette wrote in part: “[it] is not lost on this office, the power to change Michigan law only lies with the Legislature … or the people themselves through initiative.” Schuette’s opinion is not legally binding but typically are considered binding unless reversed by a state court.

In May the Michigan Civil Rights Commissioner Alma Wheeler-Smith presented a motion to adopt as Interpretive Statement 2018-1 that “discrimination because of…sex” includes discrimination because of gender identity and discrimination because of sexual orientation. The organizations that petitioned the commission had previously argued that the state’s Elliott-Larsen Civil Right Act’s existing prohibition on sex discrimination encompasses discrimination based on both sexual orientation and gender identity.

Equality Michigan, who had petitioned the commission on its interpretation of the law, issued a statement saying:

“It is imperative that the Michigan Civil Rights Commission defend its interpretation as the Attorney General’s Opinion does not have the force of law, and cannot bind state agencies.… Today’s overreach cuts at the Commission’s core constitutional authority, which should concern everyone.”

The state’s Civil Rights Department is expected to review this decision this week. The commission’s interpretation matches those of several recent decisions from the judiciary. In February, the Second Circuit Court of Appeals issued an en banc decision in the case of Zarda v. Altitude Express, finding that Title VII sex discrimination protections also apply to sexual orientation and gender identity; the plaintiff, Don Zarda, was fired from his job at a skydiving company after disclosing he was gay to a female client. In March, the Sixth Circuit ruled in the case of EEOC v. R.G. & G.R. Funeral Homes that Aimee Stephens, a transgender woman, was unlawfully terminated from her job at a funeral home after disclosing her gender identity and beginning her public transition, reaffirming a years-old precedent that Title VII prohibits anti-transgender discrimination.

To read more about the history of nondiscrimination protections in Michigan click here to visit our state page.

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