Two recent legal events have both added and emboldened rights for Michigan's LGBTIQA+ Community.
First, in Rouch World, LLC v Department of Civil Rights, No 162482, ___ Mich ___, ___ NW2d ___ (July 28, 2022), the Michigan Supreme Court held that discrimination on the basis of sexual orientation necessarily constitutes discrimination “because of … sex” within the meaning of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.
The court further held that denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service” on the basis of sexual orientation constitutes discrimination “because of … sex”; it is therefore a violation of MCL 37.2302(a) of the ELCRA. In pertinent part, MCL 37.2303(a) states, that except where permitted by law, a person shall not deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.
Facts and Procedural Background
The case involved alleged discrimination by the two plaintiffs—Rouch World, LLC, an event center, and Uprooted Electrolysis, LLC, a hair-removal center. Rouch World declined to host a same-sex wedding on religious grounds, and Uprooted Electrolysis denied hair-removal services to a transgender woman, also on religious grounds. The individuals denied services initially filed complaints with the Michigan Department of Civil Rights (MDCR). (The Michigan Civil Rights Commission had announced that as of May 22, 2018, it would interpret the ELCRA to include protections from discrimination based on sexual orientation and gender identification. See Michigan Civil Rights Commission Votes to Issue Interpretive Statement on Meaning of “Sex” in Elliott-Larsen Civil Rights Act.) The MDCR opened investigations, which were then stayed when plaintiffs filed suit seeking a declaratory judgment that the ELCRA did not prohibit discrimination based on sexual orientation and gender identity.
The court of claims denied defendants’ motion for summary disposition as it applied to Rouch World’s arguments, holding that it was bound by the Michigan Supreme Court’s holding in Barbour v Department of Social Servs, 198 Mich App 183, 185, 497 NW2d 216 (1993), a case involving workplace harassment on the basis of the plaintiff’s perceived sexual orientation. The court of claims concluded that it was not bound by Barbour with respect to Uprooted Electrolysis, as Barbour did not concern gender identity, and granted defendant’s motion for summary disposition for those claims.
Defendants first filed an interlocutory application for leave to appeal in the Michigan Court of Appeals challenging the court of claims’ rejection of summary disposition for Rouch World’s claims and then filed a bypass application in the Michigan Supreme Court. The supreme court granted the bypass application regarding the determination of the sexual orientation issue; because plaintiffs did not cross-appeal the court of claims’ holding regarding Uprooted Electrolysis’s arguments, the issue of whether the ELCRA also protects discrimination based on gender identity was not before the court.
Reasoning and Application
In a 5-2 decision authored by Justice Elizabeth T. Clement, the court held that the ELCRA’s prohibition of discrimination on the basis of sex encompasses discrimination on the basis of sexual orientation. In overruling Barbour’s determination to the contrary, the Michigan Supreme Court noted that Bostock v Clayton Cty, Georgia, 590 US ___, ___, 140 S Ct 1731, 1741 (2020)—the U.S. Supreme Court (SCOTUS) decision that Title VII applies to sexual orientation and transgender status—overruled lower federal precedent on which Barbour had relied. The court agreed with Bostock’s “straightforward analysis of the plain meaning of analogous statutory language.” The court dismissed, among other arguments, the assertion that such an interpretation is inconsistent with legislative intent. The court explained that legislative history is only relevant to statutory interpretation when the statute is ambiguous.
Rouch World’s application is broad. The ELCRA prohibits discrimination in employment, public accommodations, educational institutions, and housing on the basis of race, sex, age, religion, national origin, height, weight, or marital status. MCL 37.2102(1). Thus, although Rouch World involved public accommodations, the court’s determination of the meaning of “sex” applies to discrimination in all areas covered by the act.
Notably, while Bostock decided the Title VII issue with respect to both sexual orientation and gender identity, the Rouch World decision only dealt with the ELCRA’s prohibition of discrimination based on sexual orientation. The Michigan Supreme Court, therefore, has not issued a ruling regarding whether discrimination on the basis of gender identity is also protected under the ELCRA, though their reliance on Bostock might provide a preview.
In alignment with SCOTUS's Bostock decision, Governor Whitmer signed into law a bipartisan amendment to the Elliott-Larsen Civil Rights Act (ELCRA) that expands civil rights protections for sexual orientation and gender identity on March 16, 2023. 2023 PA 6. Although the Michigan Supreme Court decision in Rouch World, LLC v Department of Civil Rights, No 162482, ___ Mich ___, ___ NW2d ___ (July 28, 2022), enforced protections against discrimination based on sexual orientation, 2023 PA 6 codifies and expands that decision to include protections for gender identity and gender expression. Under the amendment, MCL 37.2103(f) defines gender identity or expression and MCL 37.2103(k) defines sexual orientation for purposes of the act. The amendment will allow individuals to file discrimination complaints with the Michigan Department of Civil Rights in employment, housing, education, and access to public accommodations.