In this Oct. 8, 2019 file photo, supporters of LGBT rights stage a protest on the street in front of the U.S. Supreme Court in Washington. The Supreme Court has ruled that a landmark civil rights law protects gay, lesbian, and transgender people from discrimination in employment. It's a resounding victory for LGBT rights from a conservative court. (AP Photo/Manuel Balce Ceneta, File)
In this Oct. 8, 2019 file photo, supporters of LGBT rights stage a protest on the street in front of the U.S. Supreme Court in Washington. The Supreme Court has ruled that a landmark civil rights law protects gay, lesbian, and transgender people from discrimination in employment. It's a resounding victory for LGBT rights from a conservative court. (AP Photo/Manuel Balce Ceneta, File)

Rouch World’s discrimination against LGBTQ patrons being upheld by a Michigan court is a step toward ending LGBTQ discrimination. Here’s why.

STURGIS, Mich.—Rouch World is a 300-acre park serving off-road vehicles, private events, and camping. It hosts catch-and-release fishing, boating, and occasionally weddings. It doesn’t need to host LGBTQ couples for any of these events, according to the Michigan Court of Claims, thanks to a 1988 ruling. But that 1988 ruling might be overturned in 2021.

Judge Christopher Murray from the Michigan Court of Claims found on summary judgment Thursday that Rouch had the right to enact such discrimination because sexual orientation was not covered by the Elliott-Larsen Civil Rights Act of 1976. Summary judgment is a legal process designed to speed up cases where the result is a foregone conclusion, without the time or expense of a trial.

This means that the actual trial has been skipped altogether, but the decision of the Court of Claims can still be appealed, and will be by the Department of Civil Rights. 

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The Michigan Department of Civil Rights interprets sex discrimination to include discrimination based on sexual orientation and gender identity, and therefore took action against Rouch. But the department ran into a challenge in the decades-old ruling from Michigan’s Court of Appeals. 

Because of the 1988 ruling that sexual orientation is not part of Elliott-Larsen’s protections, in this instance, Murray’s ruling means he saw absolutely no legal merit to the idea that discrimination based on sexual orientation is illegal in the state of Michigan. The department’s interpretation was rejected, in other words, because Murray’s decision was “controlled” by another ruling. 

Being Controlled by 1988 but Persuaded by 2020

When an appeals court, including a state or federal Supreme Court, makes a decision in a case it sets a precedent. Precedents come in a few varieties, but the one at play in Rouch case comes from a mandatory, or controlling, precedent. That means the precedent was both from a higher court and part of the same jurisdiction—in this case, the Michigan state court system. That means Murray had no choice but to follow that precedent.

In October 1988, Michigan’s Court of Appeals decided Barbour v. Department of Social Services, finding that no protections for sexual orientation existed in Elliott-Larsen. Because Barbour didn’t address gender identity, however, the case against Uprooted was not bound by that decision.

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The other main type of precedent is persuasive, meaning a ruling comes from a court outside the same court system. The Deparment of Civil Rights interpretation was strengthened recently by a persuasive precedent from a US Supreme Court case won posthumusly by a transgender Michigan woman this summer. Though that case was about employment discrimination specifically against transgender Americans, Harris Funeral Homes v. EEOC made a legal argument connecting LGBTQ identities to sex discrimination. That means that while the case isn’t controlling, it does inform future legal decisions. 

And Murray recognized the persuasive precedent in another case involving the Department of Civil Rights enforcement. That case involved Marquette-based Uprooted Electolysis, which refused to provide hair removal services to a transgender client. Murray permitted that case to go to trial. 

Hopeful for 2021

The problem with applying that same standard to sexual orientation as the court did to gender identity is that controlling precedent always outweighs persuasive precedent. But recognizing the persuasive precedent is optional for a court, so that alone is a win for LGBTQ Michiganders, argues Erin Knott, executive director of Equality Michigan.

“Judge Murray’s ruling is an important, if incremental, win for equality,” she told The ‘Gander. “The Michigan Court of Claims held … that the Elliott-Larsen Civil Rights Act’s prohibition on sex discrimination encompasses discrimination based on gender identity.”

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She also noted that thanks to the Supreme Court ruling this summer, when Attorney General Dana Nessel appealed Murray’s decision, the Court of Appeals will likely overturn its 1988 ruling. Overturning the Barbour ruling would mean Michigan courts could instead follow the Harris Funeral Homes ruling. Nessel has already announced her intention to appeal. 

“We intend to submit that all Michigan residents are entitled to protection under the law—regardless of their gender identity or sexual orientation—in our appeal to this decision,” AG Nessel told MLive. “Michigan courts have held that federal precedent is highly persuasive when determining the contours of the Elliott-Larsen Civil Rights Act, and federal courts across the country—including the U.S. Supreme Court in Bostock v Clayton County—have held that discrimination on the basis of sexual orientation is a form of sex discrimination.”

Of course, Knott pointed out, there is another solution to the problem posed by Barbour—amending Elliott-Larsen.

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There are efforts underway to do just that. A separate group, Fair and Equal Michigan, attempted to get a proposal to include sexual orientation and gender identity explicitly in Elliott-Larsen on the 2020 ballot. It was unsuccessful thanks to disruptions to the petition drive from the coronavirus. However, Knott pointed out that the citizen-led initiative is on track to be on Michigander’s ballots in 2022 unless the Legislature takes action to adopt substantively similar legislation.

Knott hopes they do just that. 

“Equality Michigan continues to call upon the legislature to pass a LGBTQ+ law that ensures all Michiganders, regardless of their sexual orientation, gender identity, or expression, are explicitly protected by the state’s civil rights law,” she said.