Nessel, Department of Civil Rights file to protect citizens from sexual orientation discrimination before Michigan Supreme Court

Michigan Attorney General Dana Nessel, on behalf of the Michigan Department of Civil Rights (MDCR) and the director of the MDCR, is challenging a Court of Claims’ ruling that the Elliott-Larsen Civil Rights Act (ELCRA) does not prohibit discrimination because of an individual’s sexual orientation. The Michigan Supreme Court has agreed to hear the landmark case.

“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.

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.

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. This interpretation by the MCRC allowed the MDCR to begin processing complaints of discrimination based on sexual orientation and gender identity.

Complaints about the plaintiff businesses were filed in 2019 with the MDCR, which began its investigation. 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 that the MCRC had no authority to issue the 2018 interpretive statement that sexual orientation and gender Identity were covered under ELCRA.

Court of Claims Judge Christopher Murray, in his opinion issued on Dec. 7, 2020, sided with the MCRC’s interpretive statement that the ELCRA provides protections for “gender identity.” But, as to sexual orientation discrimination, he concluded that he was bound by a 1993 Court of Appeals ruling in Barbour v Department of Social Services, which held that sexual orientation does not fall within the meaning of sex under ELCRA. The 28-year-old Barbour decision, however, relied on federal precedent that is no longer valid in light of the U.S. Supreme Court decision, Bostock v Clayton Co. In Bostock, the U.S. Supreme Court held that discrimination on the basis of sexual orientation is a form of sex discrimination.

Under the Michigan Court Rules, the Court of Claims and the Court of Appeals are bound by prior published decisions of the Court of Appeals issued on or after November 1, 1990, such as Barbour. But, given that this issue is of highest public importance and affects the daily lives of many Michigan residents, AG Nessel and MDCR filed a bypass application in the Michigan Supreme Court, seeking a prompt review of this matter. The Michigan Supreme Court agreed the case warranted immediate review.

As stated in the brief, “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.” Depriving lesbian and gay Michiganders the protections under the ELCRA is both a “stigmatizing injury” and a “deprivation of personal dignity.”

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