In landmark ruling, Michigan Supreme Court says definition of ‘sex’ in discrimination law includes sexual orientation

Story at a glance

• The definition of sex in a decades-old Michigan discrimination law includes sexual orientation, the state Supreme Court ruled Thursday.

• The ruling is the result of a 2020 case involving two Michigan businesses that denied services to patrons based on their sexual orientation and gender identity.

• While the decision was celebrated by some, others said the court was reinterpreting state law in an overextension of its duty.

In a landmark decision, Michigan’s Supreme Court has ruled that a state law against sex discrimination also protects individuals from discrimination based on their sexual orientation.

In an opinion published Thursday, Justice Elizabeth Clement, writing for the court’s majority, ruled that the definition of sex in Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), a decades-old state law prohibiting sex-based discrimination, also includes sexual orientation.

“Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex,” Clement wrote. Therefore, denying an individual “full and equal enjoyment” of goods, services and public accommodations because of their sexual orientation is a violation of the ELCRA.

The ruling is the result of a 2020 case involving two Michigan businesses that had denied services to clients because of their sexual orientation and gender identity.

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Rouch World, an outdoor event space roughly 10 miles north of Michigan’s border with Indiana, had refused to allow a lesbian couple to hold their wedding onsite. Uprooted Electrolysis, which provides permanent hair removal services, would not serve a transgender woman.

In a lawsuit against the state following customer complaints and an investigation by Michigan’s Department of Civil Rights, both businesses argued that they were entitled to deny services to LGBTQ+ people because of their “sincerely held religious beliefs.”

Only the instance of alleged discrimination based on sexual orientation made its way to the state Supreme Court.

On Thursday, Michigan Gov. Gretchen Whitmer (D) celebrated the court’s ruling. In December, Whitmer filed an amicus brief in the Michigan Supreme Court arguing that the language of the ELCRA prohibits discrimination based on sexual orientation.

“For too long, LGBTQ+ Michiganders had been left out of our state’s civil rights protections,” Whitmer said Thursday. “No longer. Because of this ruling, nobody can legally be fired from their job or evicted from their home because of who they love.”

“Today, Michigan is more free and fair than it was yesterday,” Whitmer said.

Support for the court’s ruling was not unanimous. In a dissenting opinion on Thursday, Justice Brian Zahra wrote that while he believes the majority opinion is “a victory for a good many Michiganders,” he also believes that his colleagues overextended their power as Supreme Court justices.

“This court’s duty is to say what the law is, not what it thinks the law ought to be,” Zahra wrote. “But this is exactly what a majority of this court has done here.”

Zahra argued that when the ELCRA was passed in 1976, the public’s understanding of the word “sex” was much more narrow than it is today. The law as written does not prohibit discrimination based on sexual orientation, according to Zahra, because the ELCRA was not passed to protect sexual behavior.

“Context and intent matter when interpreting statutes,” Zahra wrote. “When read in context it becomes eminently clear that the plain and ordinary meaning of the word ‘sex’ in 1976 did not include sexual orientation.”

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