Michigan Supreme Court: Law bans discrimination based on sexual orientation

Michigan Supreme Court: Law bans discrimination based on sexual orientation

Michigan law bans businesses, landlords and others from discriminating based on whether a person is gay, transgender or otherwise identifies as a member of the LGBTQ community, according to a landmark ruling from the Michigan Supreme Court.

The 5-2 decision will have a sweeping impact in the state, where for decades landlords could evict someone or business owners could fire someone solely because of their sexual orientation or gender identity.

The case ultimately came down to how the justices defined "sex." Specifically, whether that word in the context of the Elliott-Larsen Civil Rights Act — a 1976 law that bans discrimination on the basis of sex — refers only to gender, or more broadly also includes gender identity and sexual orientation.

"Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex," wrote Justice Elizabeth Clement, a Republican, for the court's majority.

"Regardless of whether one defines 'sex' expansively or narrowly, the result of the textual analysis is the same: discrimination on the basis of sexual orientation necessarily involves discrimination because of sex in violation of (state law)."

The Democratic justices — Chief Justice Bridget McCormack and justices Richard Bernstein, Megan Cavanagh and Elizabeth Welch — joined in the majority. Republican justices Brian Zahra and David Viviano dissented.

“I take no issue with the merits of the policy adopted today by a majority of this court,” Zahra wrote in his dissent.

“Yet under the Michigan Constitution, the Legislature — or the people through the exercise of direct democracy — bears the ultimate responsibility to write, amend, or repeal the laws of this state. And this court’s duty is to say what the law is, not what it thinks the law ought to be. But this is exactly what a majority of this court has done here.”

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Michigan Attorney General Dana Nessel, joined by the American Civil Liberties Union (ACLU) and others, argued the term sex covers a wide swath of people. Arguing before the state supreme court in March, she said it's impossible to discriminate against someone based on sexual orientation without also discriminating against them based on gender.

On Thursday, she said the court's ruling was a huge win for the state's LGBTQ community.

“Our residents deserve to live in a state that recognizes the value of diversity and rejects the notion that our own civil rights law could be used as a tool of discrimination. This ruling is not only a victory for the LGBTQ+ community, but for all Michigan residents, and one that’s long overdue," Nessel said in a statement.

Nessel, the ACLU and her team repeatedly cited the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, written by conservative Justice Neil Gorsuch for the majority, that affirms a federal ban on discrimination due to sex also covers sexual orientation.

"Even if an employee might be intending to discriminate on the basis of sexual orientation and describe their motivation that way, it would still involve discrimination because of sex," University of Michigan law professor Leah Litman told justices, representing the ACLU at the March hearing.

"Because when the employer refuses to hire John, a man who dates other men, they would have hired Joan, a woman who dates men. And even if their intention was to discriminate on the basis of sexual orientation, in the course of doing so, they will discriminate on the basis of sex."

Justices in the majority heavily relied on this federal ruling in their justification for why state law already bans discrimination based on sexual orientation.

"Sexual orientation is 'inextricably bound up with sex,' because a person’s sexual orientation is generally determined by reference to their own sex," Clement wrote, quoting Bostock.

"For example, attraction to females in a fellow female is considered homosexual, while the same trait in a male is considered heterosexual; the sex of the individual at issue is necessary to determine their sexual orientation. To discriminate on the basis of sexual orientation, then, also requires the discriminator to intentionally treat individuals differently because of their sex."

She also argued that the Elliott-Larsen Civil Rights Act specifically bans discriminating against an individual, a point the majority determines invalidates opponent's arguments that businesses sought to discriminate against men and women alike.

"It is, therefore, no defense for a discriminator 'to say it discriminates against both men and women because of sex'—instead, this practice doubles rather than dissolves liability because the ELCRA’s focus is on individuals rather than groups," Clement wrote.

But opponents said Michigan lawmakers chose not to include specific protections for sexual orientation or gender identity at the time the law was passed, and have continually declined to do so in the decades since it was enacted.

"The question the court has to answer is what did the public understand the word 'sex' to mean in 1976, and we know that they understood it to mean only biological sex," said John Bursch, a former Michigan solicitor general now working in concert with businesses challenging the law, after the hearing.

"Otherwise, if you just use the meaning of the word as it might be considered today, you can change the law without going through the democratic process, and that's anti-democratic."

The dissenting justices echoed this language.

"No one contends that plaintiffs here are motivated by any prejudice, bias, or animus against, or belief about, men qua men or women qua women. They are not accused of misogyny or misandry," Viviano wrote in his dissent.

"Instead, they hold certain views — prejudices, biases, anima, or beliefs — concerning homosexuality. These beliefs—and not anything related to a view on biological sex — are at the center of their policies. The statute simply does not extend this far."

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The case stems from 2019, when two Michigan businesses declined to serve a same-sex couple and a transgender client.

Rouch World, an outdoor venue in southwest Michigan, declined to rent its wedding facilities to two women who planned to get married. Uprooted Electrolysis, located in the Upper Peninsula, would not offer hair removal to a woman seeking the services as part of her transition.

After the Michigan Department of Civil Rights investigated the companies following customer complaints, the businesses filed lawsuits. The suits alleged the state forcing them to serve members of the LGBTQ community would violate sincerely held religious beliefs.

The state offered the legal argument that "sex" in the Elliot-Larsen Civil Rights Act includes sexual orientation and gender identity.

The ruling may prompt legislative action.

Although Democratic lawmakers have filed bills — some with GOP cosponsors — to expressly include sexual orientation and gender identity in the Elliot-Larsen Civil Rights Act, they've failed to advance under Republican legislative leaders.

Now, the ruling may give new life to efforts from either party to either expressly ban such discrimination moving forward.

Contact Dave Boucher: [email protected] or 313-938-4591. Follow him on Twitter @Dave_Boucher1.