LGBT bias probes to continue, state rights panel decides

Beth LeBlanc | The Detroit News

The Michigan Civil Right Commission on Monday directed an agency to continue investigating sexual orientation and gender identity discrimination complaints.

The board reiterated its support for a statement issued in May that interpreted the word “sex” in the state’s 1976 civil rights law to include sexual orientation and gender identity.

The actions comes days after Attorney General Bill Schuette issued an opinion, saying the commission overstepped and that the panel’s take on the Elliott-Larsen Civil Rights Act “conflicts what the original intent of the Legislature as expressed in plain language" and his opinion is binding on state government.

But the commission on Monday decided to ignore Schuette's decision Friday and directed the Michigan Department of Civil Rights to continue investigating complaints of sexual orientation and gender identity discrimination.

The commission is an “independent, constitutionally created and establish body" and the department will continue to follow its direction, Department of Civil Rights Director Agustin V. Arbulu said in a statement.

“The commission is not bound by the opinion of the attorney general,” Arbulu said. “The only recourse is for the courts to determine if issuing the interpretive statement was within the scope of the commission’s authority, and that is the appropriate venue for resolving this issue.”

The attorney general has "constitutional status as the state's chief law enforcement officer, and attorney for all executive departments and agencies," Schuette spokeswoman Andrea Bitely said in a Monday statement.

"We released our opinion and expect the agency to follow it — the opinion is a compilation of state law and the words of our constitution," Bitely said.

Bitely referenced a 1971 Michigan Supreme Court case between the Traverse City School District and then-Attorney General Frank Kelley as precedent for the binding nature of Schuette's opinion.

The case arose when Kelley said a ballot initiative rejecting “parochiad,” or the use of public dollars for parochial schools, included prohibitions on shared time and auxiliary services for private school students.

The state Supreme Court’s decision noted that although an “opinion of the Attorney General is not a binding interpretation of law which courts must follow, it does command the allegiance of state agencies.”

On Friday, Schuette ruled a new interpretation by the commission that had extended anti-discrimination protections to gay and transgender Michigan residents was “invalid.” Federal court rulings that expanded the meaning of the word "sex" are "not consistent with Michigan’s principles of statutory interpretation," Schuette wrote. "In Michigan, the mechanism for evolution in statutory law is through legislation."

He issued the opinion at the request of GOP House Speaker Tom Leonard of DeWitt and Senate Majority Leader Arlan Meekhof of West Olive.

Meekhof’s office on Monday reiterated that Schuette’s opinion confirms the commission “acted beyond the scope of its authority.”

The commission determined in May that an existing ban on “sex” discrimination also prohibited bias on the basis of sexual orientation or gender identity.

Supporters had celebrated the commission’s interpretation, and the Michigan Department of Civil Rights had already started investigated suspected discrimination when Schuette released his opinion.

Schuette’s analysis of the issue is wrong and uses “cherry-picked precedents to arrive at his preferred policy,” Equality Michigan Executive Director Stephanie White said in a statement.

The commission has the legal authority to interpret statutes the group is meant to enforce and is not bound by Schuette’s “biased interpretation,” White said.

"The attorney general has no role in the process, and his opinion cannot invalidate the commission's interpretation, as he is not a judge, nor are his opinions judicial decisions,” White said.

The commission is announcing it will violate state law and Gov. Rick Snyder should remove the seven members who voted to do so, said David Kallman, an attorney for the conservative Great Lakes Justice Center.

If the commission continues to disregard Schuette and adjudicate complaints not covered by the Elliott-Larsen Civil Rights Act, Kallman said he would represent and "vigorously" defend those targeted by the commission.

"I think the commissioners had better be careful because they do not have immunity from suit personally when they operate outside of the scope of their authority," Kallman said. "They’ve been put on notice, they do not have immunity.”

eleblanc@detroitnews.com

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