In May 2018, the Michigan Civil Rights Commission (“Commission”) voted to expand its interpretation of the term “sex” in the Elliot Larsen Civil Rights Act (“ELCRA”) to include “sexual orientation” and “gender identity.” The Commission announced it would begin accepting complaints alleging discrimination on the basis of sexual orientation and gender identity. The Michigan Legislature recently asked Attorney General Bill Schuette to clarify whether the Commission has the authority to interpret the ELCRA to prohibit such discrimination.
On July 20, 2018, Schuette issued a formal opinion in which he concludes the Commission’s interpretation of the ELCRA is invalid because it conflicts with the plain language of the statute. “ELCRA’s text prohibits discrimination based on sex but does not cover distinctions based on sexual orientation or gender identity.” See Opinion No. 7305.
Schuette bases his opinion on the fact that the term “sex” refers to “the biological differences between males and females, not . . . the concepts of sexual orientation or gender identity.” He cites several cases showing that “courts consistently understood, from the 1970s to the 2000s, that there is a difference between classifying someone based on sex and classifying based on sexual orientation.” He acknowledges that although recent federal decisions, see Hively v. Ivy Tech Community College and Zarda v. Altitude Express, Inc., interpreting Title VII of the Civil Rights Act have held that it prohibits discrimination on the basis of sexual orientation, “these newer federal decisions interpreting Title VII do not follow Michigan’s principles of statutory interpretation.” Further, “Michigan courts interpreting ELCRA have not expanded the meaning of “sex” in the way that a few federal courts interpreting Title VII have.” He also cites the Supreme Court’s holding in Price Waterhouse v. Hopkins, in which the Court concluded that sex stereotyping was a form of sex discrimination under Title VII, but notes “the Michigan cases that have cited Price Waterhouse have not extended ELCRA to require treating discrimination based sexual orientation or gender identity as discrimination based on sex. As a result, Michigan law on the meaning of discrimination based on sex has not evolved in the way that federal law may be evolving.”
Finally, “[t]he Legislature may, if it chooses, add the new categories of sexual orientation and gender identity to the statute. But . . . legislation addressing this precise issue has been introduced every year for the past 15 years, and each year the Legislature has declined the invitation to add sexual orientation and gender identity to protected categories under ELCRA.”
“[I]t is my opinion that the Michigan Civil Rights Commission’s Interpretative Statement 2018-1, which concludes that the term “sex” as used in the Elliott-Larsen Civil Rights Act includes sexual orientation and gender identity, is invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan’s courts.”
Bill Schuette is running for Governor in the 2018 election.