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LGBTQ rights in Michigan

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LGBTQ rights in Michigan
Michigan
StatusLegal statewide since 2003
(Lawrence v. Texas)
Gender identityAltering sex on birth certificate requires sex reassignment surgery
Discrimination protectionsSexual orientation and gender identity protections (see below)
Family rights
Recognition of relationshipsSame-sex marriage legal since 2015
AdoptionYes

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Michigan may face legal challenges not faced by non-LGBT residents. Same-sex sexual activity is legal in Michigan, as is same-sex marriage. Discrimination on the basis of sexual orientation and gender identity is not explicitly banned within state law. However, a ruling of the Sixth Circuit Court of Appeals and a decision of the Michigan Civil Rights Commission have ensured that members of the LGBT community are not discriminated against and are protected in the eyes of the law.

Michigan is home to a vibrant LGBT community. East Lansing and Ann Arbor were the first cities in the United States to pass LGBT discrimination protections, doing so in 1972. Pride parades have been held in the state's most populous city, Detroit, since 1986, and today attract thousands of people.[1] While a majority of Michiganders support same-sex marriage,[2] the Republican-controlled Legislature has mostly ignored LGBT-related legislation, and as such progress has been slow (and has thus mostly come from the courts and local municipalities).[3]

Legality of same-sex sexual activity

Equality Michigan is the state's most prominent LGBT advocacy group.

Sexual acts between persons of the same sex are legal in Michigan. They had been criminalized until the state's sodomy laws, which applied to both homosexuals and heterosexuals, were invalidated in 2003 by the United States Supreme Court's decision in Lawrence v. Texas.

Recognition of same-sex relationships

Main article: Same-sex marriage in Michigan

In 2004, voters approved a constitutional amendment, Michigan Proposal 04-2, that banned same-sex marriage and civil unions in the state. It passed with 58.6% of the vote.[4]

Same-sex marriage

On January 23, 2012, a lesbian couple filed a lawsuit, DeBoer v. Snyder in United States District Court for the Eastern District of Michigan, challenging the state's ban on adoption by same-sex couples in order to jointly adopt their children. On March 21, 2014, U.S. District Judge Bernard Friedman ruled the state's ban on same-sex marriage unconstitutional. Attorney General Bill Schuette filed for an emergency stay of his ruling with the Sixth Circuit Court of Appeals.[5] On Saturday, March 22, 2014, four of Michigan's 83 county clerks opened their offices for special hours and issued more than 300 marriage licenses to gay and lesbian couples.[6] Later that day, the Sixth Circuit stayed Judge Friedman's order until March 26.[7] On March 25, 2014, the Sixth Circuit stayed the ruling indefinitely.[8] On March 28, 2014, U.S. Attorney General Eric Holder announced the Federal Government will recognize the same-sex marriages performed on March 22.[9]

On November 6, 2014, the Sixth Circuit reversed the lower court's ruling and upheld Michigan's ban on same-sex marriage.[10] On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a nationwide right to marry, legalizing same-sex marriage in the United States, and Michigan.

Domestic partnerships

Map of Michigan counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

The Michigan Supreme Court ruled that the constitutional amendment forbidding recognition of same-sex relationships meant that public employers in Michigan could not legally grant domestic partnership benefits to their employees. A law in effect since December 2011 banned most public employers, though not colleges and universities, from offering health benefits to the domestic partners of their employees. It did not extend to workers whose benefits are established by the Michigan Civil Service Commission. On June 28, 2013, U.S. District Judge David M. Lawson issued a preliminary injunction blocking the state from enforcing its law banning local governments and school districts from offering health benefits to their employees' domestic partners.[11][12] He made that injunction permanent on November 12, 2014, when he ruled in Bassett v. Snyder that Michigan's restrictions on domestic partnership benefits were not related to a legitimate government purpose. He distinguished his ruling from the Sixth Circuit's ruling in DeBoer: "It is one thing to say [as in DeBoer] that states may cleave to the traditional definition of marriage as a means of encouraging biologically complementary couples to stay together and raise the offspring they produce.... It is quite another to say that a state may adopt a narrow definition of family, and pass laws that penalize those unions and households that do not conform."[13]

Adoption and parenting

Michigan has no statutory ban on same-sex couples adopting, and no Michigan state court has ever interpreted Michigan's statute as prohibiting such adoptions. However, at least one other state court has ruled that unmarried individuals may not jointly petition to adopt.[14]

Two Michigan lesbians, who are raising three children adopted by only one of them, filed a lawsuit known as DeBoer v. Snyder in federal court in January 2012 seeking to have the state's ban on adoption by same-sex couples overturned.[15] and in September amended that suit to challenge the state's ban on same-sex marriage as well.[16]

In December 2012, the Michigan Court of Appeals, an intermediate-level court, ruled in Usitalo v. Landon that the state's courts have jurisdiction to grant second-parent adoptions by same-sex couples.[17]

Following the U.S. Supreme Court's ruling striking down Michigan's ban on same-sex marriage, Michigan courts have been granting adoption rights to same-sex couples.

In September 2019, a judge within Michigan allowed discrimination against LGBT individuals adopting children within adoption agencies, on the technical legal grounds of "fundamental religious beliefs and freedoms". As with all court cases they are subject to appeal in the future.[18]

Discrimination protections

See also: LGBT employment discrimination in the United States

LGBT people are not included in Michigan's Elliott-Larsen Civil Rights Act.[19] As early as the 1973 committee hearing on the Elliott-Larsen Civil Rights Act, members of the LGBT community in Michigan sought to be included in the law.[20][21] However, actual legislation to do so was not introduced until 2005 when Michigan's first openly LGBT state legislator, Chris Kolb, included it with two other pro-LGBT bills,[22] none of which passed.[23] Since Kolb's 2005 legislation, a number of additional bills have been introduced to add protections for the LGBT community.[24]

On December 23, 2003, Governor Jennifer Granholm issued an executive order prohibiting employment discrimination state-level public sector employment on the basis of sexual orientation. The order only covers employees of the state of Michigan and does not cover public sector employees of county, school, or local-level governments.[25] On November 22, 2007, Governor Jennifer Granholm extended her executive order to include gender identity.[26] This executive order was kept under Governor Rick Snyder.

On March 14, 2013, the Michigan Senate passed, by a 37–0 vote, an emergency harbor dredging funding bill that made private marinas ineligible for a new loan program if they discriminate based on sexual orientation. On March 20, 2013, the Michigan House of Representatives passed the bill by a vote of 106–4. On March 27, 2013, Governor Rick Snyder signed an emergency harbor dredging funding bill that made private marinas ineligible for a new loan program if they discriminate based on sexual orientation.[27][28]

In January 2019, Governor Gretchen Whitmer issued an executive order prohibiting discrimination on the basis of both sexual orientation and gender identity in all areas of state government employment, including by employers receiving contracts and in grants from the state.[29]

2018 Civil Rights Commission decision

In September 2017, after the Legislature had voted 11 times to reject protecting LGBT people from discrimination, LGBT activists asked the Michigan Civil Rights Commission to declare sexual orientation and gender identity discrimination a form of sex discrimination and as such outlaw it under the Elliott-Larsen Civil Rights Act.[30]

On May 21, 2018, the Commission interpreted the Elliott-Larsen Civil Rights Act as banning discrimination based on sexual orientation and gender identity through the category of sex. The Commission voted 5–0 to interpret existing anti-discrimination laws as including both categories. The Michigan Department of Civil Rights began processing complaints of discrimination on May 22. This decision effectively means that LGBT discrimination is now illegal under state law.[31][32] The decision was hailed by human rights group, but denounced by conservative groups.

Michigan Attorney General Bill Schuette hit back at the decision, accusing the Commission of overstepping its authority. In July 2018, Schuette said that the decision is "invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the state's civil rights law".[33] The Commission subsequently reiterated its support for the decision, and the Department of Civil Rights announced that it would continue to investigate discrimination complaints based on sexual orientation and gender identity. "The Michigan Civil Rights Commission is an independent, constitutionally created and established body," Agustin V. Arbulu, director of the Department of Civil Rights, said. "The Commission is not bound by the opinion of the Attorney General. The only recourse is for the courts to determine if issuing the interpretive statement was within the scope of the commission's authority, and that is the appropriate venue for resolving this issue."[34] The Detroit Free Press denounced Schuette for the opinion, calling it a "shameful display of bigotry", also condemning Schuette for his association with President Donald Trump, who had endorsed him for that year's gubernatorial election, which Schuette lost to Democrat Gretchen Whitmer.[35]

EEOC v. R.G. & G.R. Harris Funeral Homes

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against transgender people under the category of sex. It also ruled that employers may not use the Religious Freedom Restoration Act to justify discrimination against LGBT people. Aimee Stephens, a transgender woman, began working for a funeral home and presented as male. In 2013, she told her boss that she was transgender and planned to transition. She was promptly fired by her boss who said that "gender transition violat[es] God’s commands because a person’s sex is an immutable God-given fit."[36] With this decision, discrimination in the workplace based on gender identity is now banned in Michigan.

2020 Michigan business court ruling

In December 2020, a court ruling legally allowed businesses within Michigan to discriminate against LGBT individuals. Michigan Attorney General Dana Nessel is appealing the court's ruling.[37][38][39][40][41]

Local municipalities

See also: List of cities and counties in the United States offering an LGBT non-discrimination ordinance § Michigan
Map of Michigan counties, cities, and townships that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation with anti–employment discrimination ordinance and gender identity solely in public employment
  Sexual orientation and gender identity solely in public employment

Over thirty local municipalities have local human rights ordinances which prohibit discrimination based on sexual orientation and/or gender identity in employment and housing.[42]

Ingham, Washtenaw, and Wayne counties also prohibit discrimination on the basis of sexual orientation and gender identity in government employment.[43]

Municipality Sexual
orientation 		Gender
identity 		Employment
protections 		Housing
protections 		Date
Adrian Yes Yes Yes Yes April 21, 2014[44]
Albion Yes Yes Yes Yes 2015[45][46]
Ann Arbor Yes[note 1] Yes (1999)[48] Yes Yes July 1972[49][47][50]
Battle Creek Yes Yes Yes Yes September 3, 2013[51]
Bay City Yes Yes Yes Yes 2016[52]
Birmingham Yes No No Yes 1992[53]
Buchanan Yes Yes Yes Yes June 10, 2019[54]
Cadillac Yes Yes Yes Yes September 17, 2018[55]
Canton Township Yes Yes Yes Yes June 11, 2014[56]
Chelsea Yes Yes Yes Yes 2016[45]
Dearborn Heights Yes Yes Yes Yes 2006[53]
Delhi Township Yes Yes Yes Yes October 1, 2013[57]
Delta Township Yes Yes Yes Yes October 21, 2013[58]
Detroit Yes Yes (2008) Yes Yes 1979[50][48][53]
Douglas Yes Yes Yes Yes 1995[53]
East Grand Rapids Yes Yes Yes Yes March 26, 2015[59]
East Lansing Yes[note 2] Yes (2005)[48] Yes Yes (1986)[49] March 7, 1972[60]
Farmington Hills Yes Yes Yes Yes 2014[45]
Fenton Yes Yes Yes Yes June 9, 2014[61][62]
Ferndale Yes[note 3] Yes Yes Yes 2006[50][48][53]
Flint Yes No[note 4] No Yes 1990[53]
Grand Ledge Yes No Yes Yes 2000[53]
Grand Rapids Yes Yes Yes Yes 1994[48][53]
Holland Yes Yes Yes Yes August 19, 2020[65]
Howell Yes Yes Yes Yes 2016[45]
Huntington Woods Yes[note 5] Yes Yes Yes 2001[53]
Jackson Yes Yes Yes Yes 2017[45]
Kalamazoo Yes[note 6] Yes Yes Yes 2009[48][53]
Kalamazoo Township Yes Yes Yes Yes July 22, 2013[67]
Lake Orion Yes Yes Yes Yes 2016[68]
Lansing Yes Yes Yes Yes 2006[50][48][53]
Lathrup Village Yes Yes Yes Yes February 24, 2014[69]
Linden Yes Yes Yes Yes September 12, 2013[70]
Marquette Yes Yes Yes Yes December 14, 2015[71]
Meridian Township Yes Yes No Yes July 10, 2013[72]
Mount Pleasant Yes Yes Yes Yes July 9, 2012[73][64][74][75]
Muskegon Yes Yes Yes Yes March 12, 2012[64][76]
Oshtemo Township Yes Yes Yes Yes August 27, 2013[77]
Pleasant Ridge Yes[note 7] Yes Yes Yes March 4, 2013[63]
Portage Yes Yes Yes Yes 2016[45]
Royal Oak Yes[note 8] Yes Yes Yes November 5, 2013[78]
Saginaw Yes No No Yes 1984[53]
Saint Joseph Yes Yes Yes Yes March 11, 2019[79]
Saline Yes Yes Yes Yes March 5, 2018[80]
Saugatuck Yes Yes Yes Yes 2007[48][53]
Saugatuck Township Yes Yes Yes Yes 2007[53]
Southfield Yes Yes Yes Yes 2015[45]
Traverse City Yes[note 9] Yes Yes Yes October 4, 2010[81]
Trenton Yes Yes Yes Yes November 12, 2013[83]
Union Township Yes Yes Yes Yes October 11, 2012[64][73]
Wayland Yes Yes Yes Yes 2015[45]
Ypsilanti Yes Yes Yes Yes 1997[48][53]

Notes:

  1. ^ While East Lansing was the first community in the United States to enact civil rights protections that included sexual orientation, Ann Arbor was the first to pass comprehensive protections that included employment, housing, and public accommodations.[47]
  2. ^ East Lansing was the first community in the United States to enact civil rights protections that included sexual orientation.[60]
  3. ^ Ferndale voters passed the measure in 2006 after three voter referendums since the time it was first proposed in 1991.[63]
  4. ^ An ordinance expanding its non-discrimination ordinance was passed in 2012. However, when the Emergency Financial Manager (EFM) law was voted down statewide, all ordinances enacted in Flint by the EMF were removed, including the non-discrimination ordinance. Their previous non-discrimination ordinance is still in effect, but the gender identity component is not.[64]
  5. ^ In 2001, the City Council approved the measure, but opponents gathered enough signatures to force a citywide ballot question on the ordinance. In November 2001, voters then approved the measure, 1,982 to 896.[66]
  6. ^ The ordinance was first passed in December 2008. It was repealed in January 2009 when opponents submitted petitions to force a public vote. The city drafted language that offered a compromise, including the exemption for religious organizations. The City Council voted unanimously in June 2009 to pass it. Groups opposed to including sexual orientation and gender identity in the ordinance again submitted petitions — 1,273 signatures were needed, 2,088 were gathered. On November 4, 2009, the ordinance was upheld with 7,671 people voting “yes” and 4,731 voting “no” — 60% to 37%.[53]
  7. ^ On March 4, 2013 the Pleasant Ridge City Commission passed a human rights ordinance in a 6–1 vote which included sexual orientation. On April 9, 2013, the Commission voted unanimously to also prohibits biases based on HIV status and gender identity.[63]
  8. ^ In March 2013, the Royal Oak City Commission voted 6-1 to enact a human rights ordinance inclusive of gender identity and sexual orientation. Opponents collected more than 1,000 petition signatures to override the commission’s vote and put the issue before Royal Oak voters in the November 2013 election. Royal Oak voters rejected a similar human rights ordinance in 2001 by a 2-1 margin, but passed the ordinance in 2013 by a margin of 6,654 votes for and 5,670 votes against the measure.[78]
  9. ^ On October 4, 2011, the Traverse City Commission approved the measure to prevent discrimination based on sexual orientation or gender identity.[81] Opponents of the law collected signatures to require a referendum. On November 8, 2011, Traverse City residents voted 63% to 37% in favor of retaining the city ordinance.[82]

Hate crime law

Since 1992, sexual orientation has been recognized for data collection about hate crimes in Michigan.[84]

Conversion therapy

See also: List of U.S. jurisdictions banning conversion therapy

In June 2019, Huntington Woods City Commission passed an ordinance, in a unanimous 5–0 vote, banning conversion therapy in a first reading.[85] As of June 2019, there is no statewide ban on conversion therapy in Michigan. A year later in July 2020, the Madison Heights City Council unanimously approved the amendment to the city's ordinance on minors upon its second reading, effectively prohibiting the practice within the city. Conversion therapy in the community is ineffective, causes suicide and even traumatizing for LGBT individuals.[86] In August 2020, the Michigan City of Royal Oak also passed an ordinance that banned conversion therapy on minors - explicitly with up to 90 days jail or imprisonment and a $500 fine.[87]

Gender identity and expression

In order for transgender people to change their legal gender on their birth certificates in Michigan, they must undergo sex reassignment surgery, a name change and receive a medical affidavit from a physician.[88]

Driver’s licenses

In November 2019, Michigan implemented a new government software system to change an individuals gender or sex on drivers licenses and I.D.s within the state - by both a signed statutory declaration and a fee.[89][90] In January 2020 it was announced possibly from 2021, driver licences within Michigan will include gender X.[91]

Public opinion

A 2017 Public Religion Research Institute poll found that 63% of Michigan residents supported same-sex marriage, while 29% were opposed and 8% were unsure.[2] Additionally, 70% supported an anti-discrimination law covering sexual orientation and gender identity. 22% were opposed. The PRRI also found that 62% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 31% supported such religiously-based refusals.

Summary table

Same-sex sexual activity legal Yes (Since 2003 - nationwide)[92]
Equal age of consent (16) Yes (Since 2003 - nationwide) [92]
Anti-discrimination laws in all areas Yes (Both sexual orientation and gender identity since 2019)
Same-sex marriages Yes (Since 2015 - nationwide)
Joint and stepchild adoption by same-sex couples Yes/No (In September 2019, a judge within Michigan allowed discrimination against LGBT individuals adopting children within adoption agencies, on the technical legal grounds of "fundamental religious beliefs and freedoms". As with all court cases they are subject to appeal in the future)
Lesbians, gays and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes/No (Most Transgender personnel allowed to serve openly since 2021)[93]
Transvestites allowed to serve openly in the military No[94]
Intersex people allowed to serve openly in the military X/Yes (Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[95]
Right to change legal gender on birth certificate Yes (Requires sex reassignment surgery and gender x is not available on a birth certificate)
Access to IVF for lesbians No
Automatic parenthood on birth certificates for children of same-sex couples Yes
Abolition or repeal of the archaic gay and trans panic defense No
Conversion therapy banned on minors No/Yes (Some cities and counties by ordinance)
Third gender option on drivers licenses or I.D.s Yes (Since 2019, Michigan implemented a new government software system to change an individuals gender or sex on drivers licenses and I.D.s within the state - by both a signed statutory declaration and a fee. In January 2020 it was announced possibly from 2021, driver licences within Michigan will include gender X)
LGBT anti-bullying law in schools and colleges No
LGBT-inclusive history education required to be taught in schools No
LGBT-inclusive sex education required to be taught in schools No
Surrogacy access for gay male couples No
MSMs allowed to donate blood Yes/No (Since 2020, 3 month deferral period - federal policy)
Hate Crime law for crimes on the basis of sexual orientation Yes/No (Only for data collection on hate crimes in Michigan)
Hate Crime law for Crimes on the basis of Gender Identity No

See also

References

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  82. ^ "Traverse City voters approve gay-rights law". The Morning Sun. Traverse City, Michigan. Associated Press. April 27, 2012. Retrieved October 23, 2013.
  83. ^ "Ordinance 777" (PDF). City of Trenton. Retrieved February 3, 2014.
  84. ^ "Section 28.257a". Legislature.mi.gov. March 30, 1992. Retrieved June 29, 2014.
  85. ^ "Huntington Woods Bans Gay Conversion Therapy". CBS Detroit. Huntington Woods. June 5, 2019.
  86. ^ [7]
  87. ^ [8]
  88. ^ Michigan National Center for Transgender Equality
  89. ^ [9]
  90. ^ [10]
  91. ^ [11]
  92. ^ a b Cite error: The named reference :0 was invoked but never defined (see the help page).
  93. ^ https://apnews.com/article/biden-reverse-ban-transgender-military-f0ace4f9866e0ca0df021eba75b3af20
  94. ^ https://www.military.com/join-armed-forces/disqualifiers-medical-conditions.html
  95. ^ https://www.military.com/join-armed-forces/disqualifiers-medical-conditions.html
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