Michigan Attorney General Bill Schuette (R), who is vying to be the state’s next governor, issued an opinion Friday declaring that state law does not protect LGBTQ people from discrimination.
Schuette’s opinion came at the request of state Sen. Majority Leader Arlan Meekhof (R) and House Speaker Tom Leonard (R). Back in May, the Michigan Civil Rights Commission issued an interpretive statement declaring that the inclusion of “sex” as a protected class under the state’s Elliott-Larsen Civil Rights Act (ELCRA) also protected against discrimination on the basis of sexual orientation and gender identity. This, the Republican lawmakers insisted, was beyond the commission’s authority, and “threatens to undermine our system of government,” so they sought the attorney general’s opinion.
In his response, Schuette agrees that the Civil Rights Commission’s interpretation is “invalid.” He justifies this by relying on how the dictionary defined the word “sex” back in 1976, when the ELCRA first passed. He even notes in his opinion that common dictionaries from that era “typically did not include entries” for the concepts of sexual orientation and gender identity.
Given the fact Michigan courts have not ruled otherwise, Schuette asserts that only the state legislature can change the interpretation of the law. He does note that several federal appeals courts have recently ruled that the “sex” protections under federal law (Title VII) do protect LGBTQ people. Notably, the U.S. Court of Appeals for the Sixth Circuit ruled in March that it was unlawful for a Michigan funeral home to fire an employee for being transgender.
“But those interpretations were less contemporaneous,” Schuette counters, “and so less persuasive as to the original meaning of the word ‘sex’ in 1964 (or 1976). As the Michigan Supreme Court has explained, courts are expected to ‘ascertain the original meaning . . . when the statute was enacted,’ so it is the older cases, not the newer ones, that offer the most insight into the original public meaning of the word ‘sex.'” In other words, he’s arguing against what the federal courts have ruled in his own state.
Borrowing from a familiar conservative argument, Schuette also points out that the Michigan state legislature has considered legislation to explicitly protect LGBTQ people, and declined to do so. “The fact that the branch of our government with the authority to enact laws has declined to extend ELCRA’s coverage to reach sexual orientation and gender identity means that an executive agency (i.e., the Civil Rights Commission) necessarily lacks the authority to achieve that extension through its limited authority to enforce the law, not to make it,” he reasons.
Despite his reliance on originalism, Schuette is nevertheless making a political statement about the nature of LGBTQ identities and LGBTQ people’s entitlement to civil rights. The fact that the legislature hasn’t clarified those protections doesn’t mean the category of “sex” excludes the LGBTQ community, and Schuette’s opinion fails to address any of the counter arguments as to why “sex” is an umbrella for “sexual orientation” and “gender identity.”
In terms of gender identity, if a transgender person is not protected on the basis of gender, they aren’t protected by the law at all. A transgender woman would never claim that she’s being unfairly treated as a man because she is not a man. Any kind of discrimination on the basis of gender identity would require making distinctions on the basis of sex.
In that Sixth Circuit case, for example, a Michigan funeral home fired trans woman Aimee Stephens because after she transitioned, she sought to abide by the dress code for women. The funeral home insisted she must continue to follow the dress code for men, and fired her when she refused. The Court ruled that Stephens wasn’t fired for not following the dress code, but because “she refused to conform to the Funeral Home’s notion of her sex.”
There’s also a compelling case to be made that any discrimination on the basis of sexual orientation is discrimination on the basis of sex. There are, in fact, three compelling reasons:
- Sexual orientation is inherently tied to a person’s sex. To be gay is to be a man attracted to men or a woman attracted to women. Discriminating against a man who associates with men but not a woman who associates with men is a distinction based on sex.
- Sexual orientation is likewise inherently tied to the sex of a person’s partner. Discriminating against a man who associates with men but not a man who associates with women is also making a distinction on the basis of sex. This follows the reasoning that discriminating against someone for being in an interracial marriage is discrimination on the basis of race.
- Sexual orientation is inherently tied to gender expectations and stereotypes. Discriminating on the basis of sexual orientation is discriminating on the basis of assumptions about how each gender is supposed to act. The U.S. Supreme Court ruled in Price Waterhouse v. Hopkins that discriminating on the basis of gender stereotypes is a form of discrimination on the basis of “sex.”
LGBTQ visibility and inclusion in 2018 is vastly different than it was when Michigan’s ELCRA became law in 1976. The fact that society has learned more about the very nature of sexual orientation and gender identity since then doesn’t mean that LGBTQ people aren’t entitled to protection under the law. Not only does Schuette appear to pine for a bygone era before LGBTQ equality, his opinion also amounts to a statewide license to discriminate.
On August 7, he faces three other contenders in the Republican primary race for Michigan governor.