MARQUETTE — Following a Michigan Court of Claims decision involving a discrimination lawsuit filed against the Michigan Department of Civil Rights, Attorney General Dana Nessel announced she is commending the court’s decision on “gender identity” but vows to appeal its ruling as it relates to “sexual orientation” and the terms’ meanings under the Elliott-Larsen Civil Rights Act.

Plaintiffs in the lawsuit include UpRooted Electrolysis LLC, based in Gwinn, and Rouch World LLC, an amusement park in downstate Sturgis, while the defendants are the Michigan Department of Civil Rights and Mary Engleman, interim director of the department.

According to the attorney general’s office, the businesses, based on religious grounds, denied services to customers who were either a same-sex couple or an individual who was transitioning their gender identity.

In 2018, the Michigan Civil Rights Commission adopted an interpretive statement that “sex” as defined by ELCRA included protections for individuals on the basis of sexual orientation and gender identity, the office said. This determination by the commission allowed the MDCR to begin processing complaints of discrimination based on sexual orientation and gender identity.

Complaints about the plaintiff businesses were filed in 2019 with the MDCR, which began its investigation. Early this year, plaintiffs filed suit, asking the court to rule that the MDCR has no jurisdiction to investigate complaints based on sexual orientation or gender identity and that the MCRC had no authority to issue the 2018 interpretive statement that sexual orientation and gender identity were covered under ELCRA.

Judge Christopher Murray, in his opinion issued on Dec. 7, sided with the commission’s interpretive statement that ELCRA provides protections for “gender identity.” However, the court indicated ELCRA does not prohibit discrimination against a person because of an individual’s “sexual orientation” based on a 1993 Court of Appeals ruling in Barbour v. Department of Social Services.

Nessel has indicated she will appeal that ruling on behalf of the Department of Civil Rights.

“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,” Nessel said in a statement. “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.”

Also providing statements were Stacie Clayton, MCRC chairwoman, and James E. White, MDCR director.

“The Michigan Civil Rights Commission welcomes Attorney General Dana Nessel’s decision to appeal,” Clayton said. “We are encouraged that the Michigan Court of Claims has ruled the word ‘sex’ in ELCRA encompasses gender identity, but we will continue to argue that the U.S. Supreme Court was right to conclude, as did the Michigan Civil Rights Commission, that ‘sex’ in this context is also inclusive of sexual orientation. We are confident that Michigan’s appellate courts will do the same.

“The fact is that continuing to interpret the word ‘sex’ in a more restrictive way than we do any of the other protected classes under ELCRA is in itself discriminatory.”

White said, “The Michigan Department of Civil Rights is committed to continuing the work we are mandated to do. We stand ready to investigate and resolve all complaints of discrimination filed with us, under the authority of the Elliott-Larsen Civil Rights Act and other state and federal civil rights laws.”

Murray wrote in his decision that following the Bostock court’s rationale, if defendants determine that a person treated someone who “identifies” with a gender different from the gender with which he or she was born, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures.

“Nothing in the ELCRA would preclude that action,” Murray said.

Lansing-based attorney David Kallman is representing Sheri Curtice-Young, UpRooted owner and electrologist. He said in the case of Rouch World, sexual orientation is not a protected category under ELCRA.

“If the legislature wants to change Elliott-Larsen, they have every right to do it,” Kallman said.

Of the Court of Claims decision, he noted, “It was kind of a split decision in a way.”

According to court documents, the plaintiffs allege that to find them responsible for violating ELCRA would be inconsistent with the free exercise of religion guaranteed by the United States and Michigan constitutions.

In his decision, Murray wrote that whether enforcement of the MDCR’s interpretative statement, as modified by his opinion and order, would interfere with the plaintiffs’ First Amendment rights to the free exercise of religion “has not been sufficiently briefed to resolve at this juncture.”

“This is not a final order as it does not resolve all of the pending issues in this case,” Murray wrote.

Kallman said Nessel’s plan to appeal was her prerogative, and if the Michigan Legislature wants to change ELCRA, “they have every right to do it.”

Christie Mastric can be reached at 906-228-2500, ext. 250. Her email address is cbleck@miningjournal.net.