Starting Tuesday, the Michigan Civil Rights Commission will take complaints of discrimination based on sexual orientation or gender identity for the first time.
The change comes following a 5-0-1 vote Monday to expand the commission’s interpretation of the state’s Elliott-Larsen Civil Rights Act to include protections from discrimination based on sexual orientation and gender identification in employment, education, housing and real estate as well as use of public accommodations and public service.
“We’re thrilled, obviously. This is an important step for LGBT people in the state of Michigan to be treated equally under the law,” said Stephanie White, executive director of Equality Michigan, a statewide advocacy organization serving LGBTQ and HIV-affected communities.
“Yesterday, LGBT people could be fired and may or may not have any recourse or the protection of the Department of Civil Rights. (This decision) opens up a path for possible justice. Importantly, it also provides us the opportunity to have a full picture of discrimination — record the cases, track them, see them, investigate them more fully to be taken seriously and to be seen.
“We’re grateful for the Civil Rights Commission to take this stand and be bold, and we will be happy to help them in any way.”
But the move is likely to face challenges.
Ron Robinson, an assistant in the Attorney General’s Office, told the commission in September that it didn’t have the authority to re-interpret the civil rights act.
That, he said, is up to the state Legislature.
“Should the commission issue a ruling contrary to the Attorney General, the commission would give up its governmental immunity and would be subject to a lawsuit,” Robinson told commissioners at the time.
Andrea Bitely, a spokeswoman for the Attorney General’s Office, confirmed Monday that it continues to support the opinion that it’s up to the Legislature to amend the Civil Rights Act.
Vicki Levengood, communications director for the State Department of Civil Rights, said commissioners weren’t satisfied with that opinion.
“The commissioners have received from multiple attorneys the opinion that they do have the legal authority to issue that statement,” she said. “And they voted in favor of doing so.”
Dan Levy, director of law and policy for the state Department of Civil Rights, said the expanded interpretation is a way forward.
“Only the Legislature can make laws, but the Legislature doesn’t do interpretations. The courts do, and the agencies of government do,” he said.
“It doesn’t necessarily change the law. It determines the way we are going to proceed under the law until there is a final ultimate decision. In a sense, you can’t get a final decision in the courts until you start cases. And so, this is the way we will be processing cases.
“It’s a way of letting the public know that if you’re a landlord or an employer, you could be subject to charges of discrimination if you do these things.”
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Federal courts, including the 6th U.S. Circuit Court of Appeals, Levy said, have supported a similar interpretation of federal laws, which he argued gives the commission’s vote more weight.
Michigan’s newly expanded interpretation uses “exactly the same wording. It’s just a matter of interpreting what the words mean. So having the circuit courts of appeals agree that the words mean what we think they mean definitely makes it a stronger argument” Levy said.
“We’re talking about people who up until now when they’ve been discriminated against, they came to our offices seeking help, and they were turned away based upon a misread of what is an evolving area of law.”
William Wagner, a former federal judge and distinguished professor emeritus from Western Michigan University-Cooley Law School and the University of Florida, said the commission’s decision went too far.
“They do not have the legal authority to do that and the Attorney General of the State of Michigan and his representative have said that,” Wagner told the Free Press on Monday. “And so, they’re defying the legal opinion from the lawyer that is supposed to speak for them.
“Now, the bigger problem with that is that we have another unelected body, then, defying the rule of law, ignoring the rule of law and advancing a personal political agenda instead of following the law. That is dangerous for any government.
“Wherever you fall on the political or social agenda here, whatever side of the issues you fall on, you should be concerned about the way this has happened.”
He suggested lawsuits could follow against the state and against the individual members of the commission who voted in favor of the reinterpretation of the civil rights act.
“Whether you have an R after your name or a D after your name, are liberal or conservative, the law has to matter because that’s the only way a civil society can exist peacefully. And so that’s my biggest concern here.”
Levy said the commission is prepared for legal challenges.
“This certainly isn’t the end of this story,” he said, “but it opens the doors for people to make the argument that they’ve been discriminated against. We’re letting them into the judicial system, into the system of justice, and now they’re going to have to make their case.”
How to report discrimination
Have you faced discrimination based on your gender identity or sexual orientation? The Michigan Civil Rights Commission is taking complaints starting Tuesday morning at 800-482-3604 or online at Michigan.gov/mdcr
How they voted
The Michigan Civil Rights Commission voted Monday to expand the reach of the Elliot-Larsen Civil Rights Act to include protections for people based on gender identity and sexual orientation.
Commissioner Alma Wheeler Smith of Ann Arbor, a former state representative and state senator, brought the issue to a vote.
Others in support of the expanded interpretation were: Mumtaz Haque of Troy, Laura Reyes Kopack of Livonia, Rasha Demashkieh of Ft. Gratiot, and Stacie Clayton of Detroit.
Commissioner Ira Combs of Jackson abstained, and commissioners Jeffrey Sakwa of Birmingham and Ricardo Resio of Saginaw were absent.