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Michigan Judge Says Businesses Can Discriminate Against Gay, Lesbian People

— December 11, 2020

Michigan Attorney Dana Nessel said she is planning to appeal the decision.

Michigan Attorney General Dana Nessel will appeal a judge’s finding that the state’s civil rights statutes do not forbid discrimination on the basis of sexual orientation.

“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,” Nessel said in a statement.

According to The Hill, the controversial ruling was passed Monday by Judge Christopher Murray. In his opinion, Murray asserted that that Michigan’s Elliott-Larsen Civil Rights Act, or ECLRA, does ban discrimination on the basis of sex—but not sexual orientation.

ELRA, adds The Hill, expressly forbids discrimination related to an individual’s “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.”

Interestingly, Murray’s interpretation of the law means that Michigan businesses must serve transgender customers, even as they may discriminate against those who are gay, bisexual, or lesbian.

Murray’s decision comes after two hard-fought cases between Michigan and two in-state entities: Rouch World, a wedding venue, and Uprooted Electrolysis, a hair removal company. Whereas Rouch World had refused to host a same-sex couple, Uprooted refused service to a transgender women.

In both cases, the companies’ owners said that serving members of the LGBTQ community went against their religious beliefs.

An LGBT flag. Image via PxHere. Public domain.

In his decision, Murray said that Rouch World did not violate Michigan state law. However, he could find no local precedent for Uprooted’s case and deferred to federal judgments, which prohibit discrimination on grounds of gender identity.

“As is often the case, when no guiding Michigan decision exists on the meaning of a provision within the ELCRA, courts turn to a consideration of federal decisions applying analogous provisions of Title VII,” Murray wrote. “

Title VII, notes, is the section of the federal Civil Rights Act of 1976 which examines and defines certain forms of sex discrimination. Federal courts have since reached a consensus that this law does prohibit discrimination due to an individual’s gender identity.

Murray interpreted Title VII to mean that “an employer violates [the act] when it treats an employee born male but who now identifies as female differently than an employee born female.”

Despite making a controversial decision on whether Michigan’s ELCRA protects gay and lesbian people, Murray did not comment on whether he believes businesses should be able to claim religious freedom as a defense for discriminating against prospective customers.

Nessel, though, has been quick to voice her dissent on the Rouch verdict.

“I respectfully disagree with the Michigan Court of Claims on its ruling in this case as it relates to sexual orientation,” Nessel said in a statement. “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 County—have held that discrimination on the basis of sexual orientation is a form of sex discrimination.”


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