➤ MICHIGAN, from p.17
after Massachusetts’ Maura Healy
— announced that the state would
appeal Murray’s ruling regarding
sexual orientation discrimination.
Murray did, however, fi nd that
discrimination against transgender
people in public accommodations
is covered by ELCRA’s sex
discrimination ban, in that instance
relying on the Bostock ruling.
The business facing the gender
identity discrimination claim has
announced that it is appealing
that portion of Murray’s ruling.
The case at issue involved discrimination
claims against two
businesses. Rouch World, an events
venue that rents space for weddings
and other celebrations, refused
to book a wedding for a same-sex
couple, citing the owners’ religious
objections to same-sex marriage
rights.
Uprooted Electrolysis, which
provides permanent hair-removal
treatment, turned down a transgender
person seeking their service
as part of her transition, also
citing religious objections that it
claims merits fi rst amendment
protection. The customers rejected
by each business fi led complaints
with MDCR, which has interpreted
ELCRA to cover nondiscrimination
claims based on sexual orientation
and gender identity.
The businesses then fi led suit
in the Court of Claims, arguing
the department lacks jurisdiction
on this question, and that in any
event their religious objections
would override any nondiscrimination
requirements under the
civil rights act.
Murray explained that ELCRA
does not defi ne the word “sex” in
the provision applicable to “a place
of public accommodation,” which
includes businesses selling goods
or services to the public.
In 1993, the Michigan Court of
Appeals ruled that “harassment or
discrimination based on a person’s
sexual orientation is not an activity
proscribed by the Act.”
That decision is binding on trial
courts in Michigan.
Murray explained that whether
that “reasoning is no longer valid
in light of Bostock v. Clayton
County… is a matter for the Court
of Appeals, not this court.”
That conclusion of course made
Nessel’s appeal inevitable — even if
it had not already been so.
Murray, however, found no prior
opinion by a Michigan court addressing
the question of whether
gender identity discrimination
claims are covered by ELCRA.
Lacking the guidance of any state
court precedent, the judge looked
to Bostock.
The Michigan Supreme Court’s
recent ruling vacating the Court of
Appeals decision involved the intermediate
appellate bench fi nding that
the state’s ethnic intimidation act inclusion
of sex as a protected class did
not cover hate crimes against trans
people.
The high court instructed the
Court of Appeals to reconsider the issue
in light of Bostock.
The bottom line of Judge Murray’s
decision is that MDCR does
not have jurisdiction over the sexual
orientation discrimination claim
against Rouch World unless the
Michigan Court of Appeals overrules
its 1993 decision, but that it
does have jurisdiction to investigate
Uprooted Electrolysis’s denial
of service to the transgender client
in this case.
Of course, the Michigan Supreme
Court’s order in the ethnic
intimidation case is likely to persuade
the Court of Appeals that
it should also reconsider the 1993
ruling in light of Bostock.
Murray refrained from ruling on
the businesses’ religious exemption
claims, stating that issue “has
not been suffi ciently briefed to resolve
at this juncture.”
The question of federal constitutional
religious exemptions from
complying with state or local antidiscrimination
laws is now before
the US Supreme Court in Fulton
v. City of Philadelphia — which
involves the city’s decision now to
renew a foster care contract with
Catholic Social Services, which refuses
to accept same-sex couples
as clients.
The case was argued at the high
court on November 4 and will be
decided sometime in 2021.
It is likely that many state agencies
and courts will defer decisions
on religious exemption claims
pending the high court’s ruling in
the Fulton case.
Bill de Blasio
Mayor
Dave A. Chokshi, MD, MSc
Commissioner
GayCityNews.com | December 17 - December 30, 2020 21
/GayCityNews.com
