Detroit Free Press
March 13, 2023
Arpan Lobo and Clara Hendrickson
Michigan is poised to add explicit legal protections against discrimination based on sexual orientation and gender identity, a move that paints Michigan in stark contrast with other states where legislatures have introduced and adopted anti-LGBTQ policies.
Michigan, heading in the opposite direction, can distinguish itself as a haven for the LGBTQ community, advocates say. Business leaders in Michigan also view civil rights expansion as a tool to attract and retain talent for their workforces.
For more than half a century, advocates have clamored for Michigan lawmakers to add explicit protections to the state’s civil rights law to prohibit discrimination against LGBTQ people in arenas from housing to hiring.
This month, both the Michigan House and Senate passed a bill − SB 4 – to do just that. Dating to 1976, Michigan’s Ellliott-Larsen Civil Rights Act bans discrimination in housing, employment, education and public accommodations on the basis of age, sex, race, weight, height, national origin, familial status and marital status. SB 4 adds sexual orientation, gender identity and gender expression to the list. Gov. Gretchen Whitmer celebrated its passage and is expected to sign the bill soon.
Every Democratic lawmaker voted for the bill, along with three Republicans in the state Senate and eight in the state House.
Against the backdrop of anti-LGBTQ policies surfacing in GOP-controlled states, advocates have a laundry list of additional measures they hope lawmakers in Michigan will take up following the votes to expand ELCRA.
Anti-LGBTQ Legislation Popping Up Nationwide
Lawmakers have introduced 388 anti-LGBTQ bills throughout the U.S. this year, according to the American Civil Liberties Union (ACLU). The bills touch on a variety of issues, including personal identification for transgender individuals, weakening nondiscrimination laws for LGBTQ individuals, banning books that address LGBTQ issues, targeting health care access for LGBTQ individuals, prohibiting transgender people from using public accommodations and barring transgender students from participating on school sports teams consistent with their gender identities.
Some states have embraced these policies this year — Arkansas and Tennessee have both adopted laws to ban drag shows in certain areas. Tennessee, Mississippi, Utah and South Dakota have all passed bans for gender-affirming care for minors.
Those actions come after 13 states adopted anti-LGBTQ policies in 2022, according to the Human Rights Campaign.
Experts Believe Michigan Can Position Itself as a Destination for Workers, Businesses
As other states position themselves as less accepting of the LGBTQ community, Michigan stands a better chance of attracting and retaining workforce talent and businesses to employ that talent if it has strong anti-discrimination policies in place, said Amritha Venkataraman, the Michigan state director for the Human Rights Campaign.
“The business community in Michigan has been pushing to expand the Elliot-Larsen Civil Rights Act because they know that it will help them attract talent, keep the workforce in Michigan and then convince other businesses and more business development to come to the state,” Venkataraman said.
“I think Michigan will be cited by other states who are looking to expand their policies as the example of a place where it was done and done well, and it really helped to grow their economy,” she added.
During her State of the State address, Whitmer called on lawmakers to expand ELCRA, noting she wanted to compete with states with “extreme laws.”
“Bigotry is bad for business,” Whitmer told lawmakers. Business leaders expressed support for expanding protections as well. The Michigan Chamber of Commerce has endorsed expanding ELCRA to ban LGBTQ discrimination. During Senate committee hearings, leaders from both the Detroit Regional Chamber and the Grand Rapids Area Chamber of Commerce testified in favor of the bill’s passage.
“Our members told us … that Michigan’s ability to attract talent would be enhanced by an expansion of the Elliott-Larsen Civil Rights Act,” said Brad Williams, vice president of government relations at the Detroit Regional Chamber during a Feb. 9 committee hearing.
“As we talk to members about the issues they are struggling with as employers, they continue to mention that talent acquisition and retention is an enormous challenge facing Michigan now, and in the future.”
Legislative Action More Than Just ‘Symbolic’
The bill sent to Whitmer’s desk codifies a pair of judicial interpretations into Michigan law. The Michigan Court of Claims ruled in December 2020 that the civil rights law prohibits discrimination on the basis of gender identity while the Michigan Supreme Court ruled last year that it bars discrimination on the basis of sexual orientation.
Jay Kaplan, staff attorney for the American Civil Liberties Union of Michigan’s LGBTQ+ Project, said codifying anti-discrimination policies insulates them from future efforts to overturn those rulings. Supreme Court justices in Michigan are elected, and different judges could have different interpretations if legal challenges are brought to the state’s high court.
“It would prevent another interpretation — an opposing interpretation — from the Michigan Supreme Court,” he said. “I think it’s more than largely symbolic … because we do elect our justices … we know that depending on who’s on that court, that legal interpretation could change.”
Erin Knott, executive director at Equality Michigan, echoed Kaplan, saying legislative action preempts any potential court rulings.
“Equality Michigan celebrated court rulings that provided nondiscrimination protections, but we always knew that the work wasn’t done,” she said.
Advocates Say Michigan Still Has More Steps to Take
Advocates mentioned a series of other policies they would like lawmakers to tackle:
- Ban conversion therapy: Conversion therapy is the practice of attempting to counsel or psychoanalyze an individual into changing their sexual orientation or gender identity, according to the American Academy of Child and Adolescent Psychiatry. Per AACAP, there is no evidence the practice is effective, while there is evidence the practice can be damaging for adolescents.
- Codify gender identity expansions for driver’s licenses and state IDs, modifying name change process: Some advocates also said that lawmakers should codify expansions to gender identity options currently offered by the Michigan Secretary of State, which allows nonbinary people to mark “X” on the sex portion of their state-issued IDs. Additionally, allowing for easier methods to legally change names would place less of a burden on transgender Michiganders. The current process is “cumbersome,” Kaplan noted.
- Ban “gay and trans panic” defense: The defense is a legal strategy where a jury is asked to consider the victim’s sexual orientation or gender identity as the reason for the defendant’s actions, per the American Bar Association. Michigan is one of 35 states which does not fully ban gay and trans panic defense, according to the Movement Advancement Project. In 2021, state Rep. Laurie Pohutsky, D-Livonia, introduced legislation which would bar the defense’s legality, although the bill never received a hearing. Pohutsky said she plans to reintroduce the bill.
As Democrats eye what other policies they plan to pursue, some Republican lawmakers have introduced legislation of their own targeting the LGBTQ community — at least two are being tracked by the ACLU. Those proposals appear headed nowhere fast. That is, as long as Democrats continue to hold control of the Legislature.