A Michigan court has ruled that it’s legal for businesses to refuse to serve gay and bisexual people but not transgender people.
The state’s civil rights law includes neither sexual orientation nor gender identity, but the Michigan Civil Rights Commission voted in 2018 to interpret the state’s ban on discrimination on the basis of sex to include discrimination against LGBTQ people, an interpretation that federal courts have agreed with and that was later used by the Supreme Court in Bostock v. Clayton County this past year to rule that federal law already bans job discrimination against LGBTQ people.
State Court of Claims Judge Christopher M. Murray issued a summary judgement in two discrimination cases, one based on anti-gay discrimination and the other on anti-trans discrimination. One case involved Rouch World, a wedding venue that refused to host weddings for same-sex couples, and the other involved Uprooted Electolysis, a hair removal service that refused to serve a transgender client. The lawsuits were combined into one.
Murray referenced a state supreme court decision in Barbour v Department of Social Services, where the court ruled that the state’s ban on discrimination because of sex does not ban discrimination against gay and bisexual people.
“Whether Barbour’s reasoning is no longer valid in light of Bostock v Clayton Co,” Murray wrote, “is a matter for the Court of Appeals, not this Court.”
But the state supreme court has not yet ruled on anti-transgender discrimination, so Murray referred to several federal rulings, including Bostock, which Murray said held “that an employer violates Title VII when it treats an employee born male but who now ‘identifies’ as female differently than an employee born female. That type of dissimilar treatment, the Court held, was discrimination because of sex.”
The state’s civil rights legislation, Murray said, is similar enough to apply the same reasoning, so the case about anti-transgender discrimination can proceed while the case about anti-gay discrimination cannot.
“We are encouraged that the Michigan Court of Claims has ruled the word ‘sex’ in ELCRA [the state’s civil rights law] encompasses gender identity, but we will continue to argue that the U.S. Supreme Court was right to conclude, as did the Michigan Civil Rights Commission, that ‘sex’ in this context is also inclusive of sexual orientation,” Michigan Department of Civil Rights Chair Stacie Clayton told MLive.com.
“The fact is that continuing to interpret the word ‘sex’ in a more restrictive way than we do any of the other protected classes under ELCRA is in itself discriminatory.”
Michigan Attorney General Dana Nessel said that she plans to appeal Murray’s ruling.
“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 Co – have held that discrimination on the basis of sexual orientation is a form of sex discrimination,” she said in a statement.
“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.”
Michigan Department of Civil Rights law and policy director Dan Levy said that they are still going to investigate cases involving sexual orientation-based discrimination. If they are working on a case that involves only sexual orientation discrimination, they “will hold the complaint pending a final result in this case.”
While religious freedom claims were made in both cases, Murray did not rule on either of them.