A judge in Michigan has determined state civil rights law prohibits businesses from discriminating against customers for being transgender, but not on the basis of sexual orientation — a decision the state’s top lawyer on Thursday has vowed to appeal.

In a seven-page decision, Judge Christopher Murray this week ruled case law in Michigan makes clear anti-gay discrimination isn’t covered under the Elliot-Larsen Civil Rights Act, but with no clear precedent on anti-transgender discrimination, the state must defer to U.S. legal jurisprudence.

Although the Michigan Civil Rights Commission has determined anti-LGBTQ discrimination is a form of sex discrimination under state law, Murray reverses the panel with respect to anti-gay and anti-bi discrimination, citing Barbour v. Department of Social Services, a decision from the Michigan Court of Appeals in 1993.

“With respect to whether sexual orientation falls within the meaning of ‘sex’ under the ELCRA, the Court of Appeals has already concluded that it does not,” Murray writes. “Being a decision published after Nov. 1, 1990, Barbour is binding on this court…and must be followed.”

Murray recognizes the U.S. Supreme Court’s landmark decision this year in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act of 1964. However, Murray concludes whether or not that ruling has implications for state law with regard to anti-gay discrimination is “a matter for the Court of Appeals, not this court.”

But with respect to anti-transgender discrimination, Murray reaches a different conclusion and finds “no guiding decision exists on the meaning of a provision within the ELCRA,” therefore he must defer to federal law and the Bostock ruling.

“Following the Bostock Court’s rationale, if defendants determine that a person treated someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures,” Murray writes. “Nothing in the ELCRA would preclude that action.”

Murray takes note the companies asked him to declare enforcing the Elliot-Larsen Civil Rights Act to prohibit anti-LGBTQ discrimination would be inconsistent with freedom of religion under both the U.S. and Michigan Constitutions, but he declines to make that finding on the basis that the issue “has not been sufficiently briefed to resolve at this juncture.”

Michigan Attorney General Dana Nessel, a lesbian, vowed in a statement on Thursday she would appeal the decision to the Michigan Court of Appeals.

“I respectfully disagree with the Michigan Court of Claims on its ruling in this case as it relates to sexual orientation,” Nessel said. “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 added she intends to argue on behalf of the Michigan Department of Civil Rights “all Michigan residents are entitled to protection under the law – regardless of their gender identity or sexual orientation – in our appeal to this decision.”

Plaintiffs in the lawsuit – Rouch World, which operates wedding venues in Southern Michigan and Uprooted Electrolysis in Marquette – are businesses denied services based on religious grounds to customers who were either a same-sex couple or an individual was transitioning their gender identity. 

Rouch World declined to host a same-sex wedding in 2019 and Uprooted Electrolysis refused service to a transgender woman. Both companies civil rights faced complaints in state court for anti-LGBTQ discrimination.

Stacie Clayton, chair of the Michigan Civil Rights Commission, said in a statement the commission “welcomes” Nessel’s decision to appeal the ruling.

“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,” Clayton said. “We are confident that Michigan’s appellate courts will do the same.”

Federal law would be no help to LGBTQ people in Michigan who face discrimination from business as customers. Although the Bostock applies to every federal law that bars sex discrimination, no federal law bars discrimination on the basis of sex in public accommodation, so the ruling doesn’t apply to businesses in this context.

The Equality Act, legislation to expand the prohibition on anti-LGBTQ discrimination under federal civil rights law, would make anti-LGBTQ and sex discrimination in public accommodations illegal and expand the definition of public accommodations under federal law to include retail stores, banks, transportation services and health care services.

h/t LGBTQ Nation