Nessel: Civil rights panel not bound by ex-AG’s LGBT opinion

In this June 4, 2019, photo, Dana Nessel, Attorney General of Michigan, listens to a question from reporters in Detroit. Hundreds of boxes. Millions of records. From Texas to Michigan this month, attorneys general are sifting through "secret" files, nondisclosure agreements between the church and families, heart wrenching letters from parents begging for action, priests' own psychiatric evaluations. They're looking to prosecute, and not just priests. (AP Photo/Paul Sancya)

LANSING — 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 chief legal counsel Suzanne Sonneborn 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.

The guidance from Nessel’s office was questioned by Republicans who control the Legislature.

“Under the chief legal counsel’s logic, the attorney general’s opinions from earlier this year halting construction of the Mackinac Straits tunnel and threatening the integrity of the petition gathering process no longer bind state agencies because the underlying questions are the subject of pending litigation,” House Speaker Lee Chatfield said in a statement. “I look forward to seeing how this new policy change plays out, and hopefully Michigan families will get the reforms they were promised and that they deserve.”

When Nessel issued opinions regarding the planned oil pipeline tunnel and the ballot drive changes, however, no lawsuits had yet been filed. They came later.

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.

Agustin Arbulu, who heads the state’s Department of Civil Rights, welcomed Nessel’s decision Tuesday.

“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.


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