Attorney General Dana Nessel is filing an appeal a court decision on a lawsuit after a Court of Claims judge last week stated that an anti-discrimination law does not cover discrimination against sexual orientation.
The lawsuit, Rouch World LLC et al v Michigan Department of Civil Rights et al, was filed in early 2020 by business owners who claimed the Michigan Department of Civil Rights (MDCR) did not have the authority to investigate complaints about discrimination. The businesses, based on religious beliefs, were refusing service 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 defined by Elliot-Larson Civil Rights Act (ELCRA) included protections for individuals on the basis of sexual orientation and gender identity.
On Dec. 7, Judge Christopher Murray sided with the MCRC’s interpretive statement that ELCRA provides protections for “gender identity,” but stated that the ELCRA does not prohibit discrimination against a person because of an individual’s “sexual orientation.”
“I respectfully disagree with the Michigan Court of Claims on its ruling in this case as it relates to sexual orientation,” Nessel said. “Michigan courts have held that federal precedent is highly persuasive when determining the contours of the Elliott-Larsen Civil Rights Act, and federal courts across the country – including the U.S. Supreme Court in Bostock v Clayton Co – have held that discrimination on the basis of sexual orientation is a form of sex discrimination.”
Before she was elected AG in 2018, Nessel as a private attorney argued against Michigan’s ban on same-sex marriage, which was overturned by the U.S. Supreme Court in 2015.
Stacie Clayton, chairperson of the MCRC, said the commission is “encouraged” by the court’s ruling, but agrees with Nessel that the ELCRA is more inclusive than the court’s ruling.
“The Michigan Civil Rights Commission welcomes Attorney General Dana Nessel’s decision to appeal. We are encouraged that the Michigan Court of Claims has ruled the word ‘sex’ in ELCRA encompasses gender identity, but we will continue to argue that the U.S. Supreme Court was right to conclude, as did the Michigan Civil Rights Commission, that ‘sex’ in this context is also inclusive of sexual orientation,” said Clayton. “We are confident that Michigan’s appellate courts will do the same. The fact is that continuing to interpret the word ‘sex’ in a more restrictive way than we do any of the other protected classes under ELCRA is in itself discriminatory.”