The Michigan Civil Rights Commission is not bound by a 2018 state opinion that says LGBT people have no protection under an anti-discrimination law, Attorney General Dana Nessel’s office said Tuesday, citing the U.S. Supreme Court’s pending consideration of whether sex-based discrimination covers sexual orientation and gender identity.
The Democratic attorney general’s guidance came after her predecessor, Republican Bill Schuette, last year issued an opinion stating that Michigan law does not ban LGBT discrimination and that it would be up to legislators to change the statute to include such protections.
Attorney general opinions are binding on state agencies unless reversed by a court. But Nessel’s office told the commission that it could ignore Schuette’s opinion and instead follow its own interpretation of the 1976 state law, known as the Elliott-Larsen Civil Rights Act.
Nessel declined to issue a new opinion, though, pointing to the office’s longstanding policy of not doing so on issues subject to pending litigation.
In April, the Supreme Court said it would hear cases involving people who claim they were fired because of their sexual orientation and another — out of Michigan — that involves a funeral home employee who was fired after disclosing that she was transitioning from male to female and would begin dressing as a woman. The cases will be argued in the fall.
Nessel said she will file a brief supporting the position that Title VII of the federal civil rights act prohibits discrimination based on sexual orientation and gender identity.
“I urge the commission to continue its important mission to investigate allegations of unlawful discrimination and to secure the equal protection of civil rights without such discrimination, and I look forward to working together with the commission in doing so,” Nessel said in a written statement.
After Schuette released his opinion last July, the Civil Rights Commission directed an agency to continue investigating complaints of discrimination based on sexual orientation and gender identity — reviews that had begun in May 2018.
Augustin Arbulu, who heads the state’s Department of Civil Rights, welcomed Nessel’s decision.
“The uncertainty caused by the legal situation surrounding this important matter of equality points once again to the need for the Legislature to amend Elliott-Larsen to assure all individuals in Michigan are protected from discrimination,” he said in a statement.
Efforts to change the law to prohibit LGBT-based discrimination in employment, housing and public accommodations have stalled in the GOP-led Legislature.