Lansing — An Michigan Court of Appeals panel ruled Tuesday that transgender people are not protected by a state law criminalizing ethnic intimidation against people based on their “race, color, religion, gender or national origin.”

The law protects those groups from malicious contact, personal property damage or threats that have “the specific intent to intimidate of harass another person.” While many would agree that transgender people shouldn't be intimidated, elected representatives need to write it into the state's 1988 ethnic intimidation law, according to the 2-1 ruling.

The Court of Appeals ruled Tuesday that transgender people are not included within the definition of “gender” because at the time the ethnic intimidation law was enacted gender was limited by definition to the “biological roles of male and female,” Appeals Court judge Michael Gadola wrote in a ruling joined by Judge James Redford.

Both judges were appointed by Republican former Gov. Rick Snyder

“…our Legislature did not include the term ‘transgender’ in the statute, quite possibly because at the time the statute was enacted the term was only just entering the public and jurisprudential lexicon,” Gadola wrote.

In a dissent, Appeals Judge Deborah Servitto argued transgender individuals were included under the term gender in the ethnic intimidation law because the victim was being harassed for being born male but identified as female.

“Just as a person’s religion may not be outwardly apparent, but may be sometimes gleaned from his or her words or chosen manner of dress, and thus motivate intimidation or harassment, so too can a person’s gender,” wrote Servitto, who was appointed by Democratic former Gov. James Blanchard. “And it is the harassment or intimidation that follows the recognition of and apparent disagreement with another’s religion or gender (among other things) that is criminalized.”

The case involves the July 2018 non-fatal shooting in Detroit of Kimora Steuball, a transgender woman, by Deonton Rogers.

Rogers, who was in line with Steuball at a Detroit gas station, made derogatory statements about Steuball’s gender identity and threatened her with a gun. When Steuball tried to wrestle the gun away from Rogers, Rogers shot Steuball in the left shoulder.

Rogers was charged with several assault-related crimes and ethnic intimidation, but a Wayne County trial court quashed the ethnic intimidation charge because it found “gender” only applies to “masculine, feminine, and neuter genders.”

The Court of Appeals agreed the ethnic intimidation charge should be dismissed, but disagreed with Wayne County’s interpretation of gender.

The legal definition of gender only listed “masculine, feminine or neuter” to establish that state law applied equally to men and women, even when masculine pronouns were used, the Tuesday opinion said.

The appellate panel instead based its reasoning on the dictionary meaning of the word “gender” in 1988, which limited the meaning to “sex,” or the “biological roles of male and female.”

To assume that the 1988 use of “gender” in the ethnic intimidation law encompassed transgender individuals “strains credulity” and so the law cannot be applied to Steuball’s case, Gadola wrote.

“If intimidation motivated by the fact a victim is a transgender person is to be criminalized, as many of us would readily agree it should be, this must be the work of the people’s elected representatives in the Legislature, not this panel of judges,” Gadola wrote.

In her dissent, Servitto argued the statute criminalizes behavior meant to harass when it is based on an individual’s “specific characteristics” and thus encompasses transgender individuals.

“More importantly, while we are not bound by decisions made in other jurisdictions, I note that several United States Courts of Appeals have held that discrimination based on gender is ‘discrimination based on a failure to conform to stereotypical gender norms,’ Servitto wrote.

eleblanc@detroitnews.com