Relying on a 1993 opinion from Michigan’s intermediate-level appellate court, a Court of Claims judge ruled on December 7 that the state’s Elliot-Larsen Civil Rights Act (ELCRA) — which among others things prohibits businesses from discriminating against customers because of their sex — cannot be interpreted as banning sexual orientation discrimination.
Judge Christopher M. Murray, ruling on December 7 in Rouch World v. Michigan Department of Civil Rights (MDCR), looked to a 17-year-old precedent from the Michigan Court of Appeals.
Significantly, however, the Michigan Supreme Court recently vacated a Court of Appeals ruling that a separate hate crimes statute does not protect transgender people. It ordered the intermediate level bench to reconsider the issue in light of the US Supreme Court’s June ruling in Bostock v. Clayton County, which found that both gender identity and sexual orientation are protected classes under the Title VII employment nondiscrimination provision of the 1964 Civil Rights Act. The state’s highest court, then, is prepared to treat Bostock as a persuasive precedent for interpreting the state’s sex discrimination laws — an inclination at odds with Murray’s ruling last week in the public accommodations case.
Trial judge sees precedent against honoring sexual orientation claim, but not gender identity suit
Michigan Attorney General Dana Nessel, who is the nation’s second out lesbian elected to such a post — after Massachusetts’ Maura Healy — announced that the state would appeal Murray’s ruling regarding sexual orientation discrimination.
Murray did, however, find that discrimination against transgender people in public accommodations is covered by ELCRA’s sex discrimination ban, in that instance relying on the Bostock ruling. The business facing the gender identity discrimination claim has announced that it is appealing that portion of Murray’s ruling.
The case at issue involved discrimination claims against two businesses. Rouch World, an events venue that rents space for weddings and other celebrations, refused to book a wedding for a same-sex couple, citing the owners’ religious objections to same-sex marriages.
Uprooted Electrolysis, which provides permanent hair-removal treatment, turned down a transgender person seeking their service as part of her transition, also citing religious objections.
The customers rejected by each business filed complaints with MDCR, which has interpreted ELCRA to cover nondiscrimination claims based on sexual orientation and gender identity. The businesses then filed suit in the Court of Claims, arguing the department lacks jurisdiction on this question, and that in any event their religious objections would override any nondiscrimination requirements under the civil rights act.
Murray explained that ELCRA does not define the word “sex” in the provision applicable to “a place of public accommodation,” which includes businesses selling goods or services to the public.
In 1993, the Michigan Court of Appeals ruled that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the Act.”
That decision is binding on trial courts in Michigan.
Murray explained that whether that “reasoning is no longer valid in light of Bostock v. Clayton County… is a matter for the Court of Appeals, not this court.”
That conclusion of course made Nessel’s appeal inevitable — even if it had not already been so.
Murray, however, found no prior opinion by a Michigan court addressing the question of whether gender identity discrimination claims are covered by ELCRA. Lacking the guidance of any state court precedent, the judge looked to Bostock.
The Michigan Supreme Court’s recent ruling vacating the Court of Appeals decision involved the intermediate appellate bench finding that the state’s ethnic intimidation act inclusion of sex as a protected class did not cover hate crimes against trans people. The high court instructed the Court of Appeals to reconsider the issue in light of Bostock.
The bottom line of Judge Murray’s decision is that MDCR does not have jurisdiction over the sexual orientation discrimination claim against Rouch World unless the Michigan Court of Appeals overrules its 1993 decision, but that it does have jurisdiction to investigate Uprooted Electrolysis’s denial of service to a transgender client.
Of course, the Michigan Supreme Court’s order in the ethnic intimidation case is likely to persuade the Court of Appeals that it should also reconsider the 1993 ruling in light of Bostock.
Murray refrained from ruling on the businesses’ religious exemption claims, stating that issue “has not been sufficiently briefed to resolve at this juncture.”
The question of federal constitutional religious exemptions from complying with state or local anti-discrimination laws is now before the US Supreme Court in Fulton v. City of Philadelphia — which involves the city’s decision now to renew a foster care contract with Catholic Social Services, which refuses to accept same-sex couples as clients. The case was argued at the high court on November 4 and will be decided sometime in 2021.
It is likely that many state agencies and courts will defer decisions on religious exemption claims pending that ruling.
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