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AG Nessel, Department of Civil Rights to appeal decision on protections for sexual orientation

Posted at 1:27 PM, Dec 10, 2020

LANSING, Mich. — Following a Michigan Court of Claims decision involving a discrimination lawsuit filed against the Michigan Department of Civil Rights, Attorney General Dana Nessel is commending the Court’s decision on “gender identity” but vows to appeal its ruling as it relates to “sexual orientation” and the terms’ meanings under the Elliott-Larsen Civil Rights Act (ELCRA).

Plaintiffs in the lawsuit – Rouch World LLC et al v Michigan Department of Civil Rights et al – are businesses that, based on religious grounds, 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 defined by ELCRA included protections for individuals on the basis of sexual orientation and gender identity. This determination by the MCRC allowed the Michigan Department of Civil Rights (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 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.

Judge Christopher Murray, in his opinion issued Monday, sided with the MCRC’s interpretive statement that ELCRA provides protections for “gender identity.” However, the Court indicated ELCRA does not prohibit discrimination against a person because of an individual’s “sexual orientation,” based on a 1993 Court of Appeals ruling in Barbour v Department of Social Services.

Attorney General Nessel has indicated she will appeal that ruling on behalf of the Department of Civil Rights.

“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. We intend to submit that all Michigan residents are entitled to protection under the law – regardless of their gender identity or sexual orientation – in our appeal to this decision.”

“The Michigan Department of Civil Rights is committed to continuing the work we are mandated to do,” said James E. White, the MDCR’s director. “We stand ready to investigate and resolve all complaints of discrimination filed with us, under the authority of the Elliott-Larsen Civil Rights Act and other state and federal civil rights laws.”

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