By Sharon Morioka
Michigan Law
In a 5-2 decision on July 28, the Michigan Supreme Court ruled that sexual orientation is protected under the Elliott-Larsen Civil Rights Act (ELCRA) because discrimination based on sexual orientation is discrimination based on sex.
Taking part in this milestone case were Michigan Law Professors Daniel Deacon and Leah Litman, who filed an amicus brief as cooperating attorneys with the ACLU of Michigan. Litman also participated in oral arguments on behalf of the ACLU of Michigan, who supported the Michigan Department of Civil Rights.
“We argued that when an entity discriminates on the basis of sexual orientation, they necessarily discriminate on the basis of sex,” said Deacon, a lecturer at the Law School.
The case involved owners of Rouch World, which had denied a couple’s request to host the same-sex wedding at their facility, and the owner of Uprooted Electrolysis, which had denied hair-removal services to a transgender woman. Both claimed that doing so would violate their religious beliefs. The couple and the transgender woman filed complaints with the state’s Department of Civil Rights, which had issued an interpretive statement in 2018 indicating that the ELCRA’s prohibition against discrimination based on sex included sexual orientation and gender identity.
“The Elliott Larsen Civil Rights Act is a broad civil rights statute that prohibits discrimination not only in employment, but also in housing, education, and public accommodations,” said Litman, ‘10, an assistant professor of law. “That means that, under the decision, a landlord can’t refuse to rent to an LGBTQ couple and a store can’t refuse to serve gay men or lesbians.”
In the brief, Deacon and Litman gave two reasons for their argument.
“One is that sex is a ‘but for’ cause of discrimination because of sexual orientation,” said Litman. “A hypothetical illustrates why: If a store would not serve John, a man who dates men, but would serve Joan, a woman who dates men, sex is a ‘but for’ cause of the discrimination against John.”
Deacon added that the second reason is that discrimination based on sexual orientation is rooted in sex stereotypes, which is another way that entities can discriminate on the basis of sex.
“When a store refuses to serve John, they are punishing John for not conforming to a stereotype about how men should behave—namely, that men should be attracted to women and not men,” said Deacon. “Punishing an individual who does not conform to a particular view about how men should behave punishes the individual for not complying with a stereotype about sex.”
According to the Court’s opinion, written by Justice Elizabeth Clement, “the determination of sexual orientation involves both the sex of the individual and the sex of their preferred partner; referring to these considerations jointly as ‘sexual orientation’ does not remove sex from the calculation.”
In preparing for the oral argument, Litman had different groups of law students “moot” her, acting as Michigan Supreme Court justices asking her questions to prepare her for the oral argument.
“That flipped around the usual roles of professor and students asking questions, and the students were hugely helpful,” said Litman, who also credited her Michigan colleagues Margaret Hannon, Jessica Lefort, Evan Caminker, Daniel Fryer, Len Niehoff, and Vivek Sankaran for mooting her as well.
Litman and Deacon were encouraged by the Court’s decision and are proud to have played a role in helping to achieve it. Said Deacon, “The decision ensures that LGBTQ individuals will not face discrimination because of who they are and who they love.”
