Aimee Stephens has been on my mind a lot recently.
I thought about her when President Joe Biden, on his first day in office, issued a sweeping executive order targeting discrimination based on gender identity or sexual orientation. And I thought about her often while working on a legal brief supporting the rights of LGBTQ people in a pivotal case now before the Michigan Supreme Court.
Both Biden’s order and the court case – Rouch World LLC v. Michigan Department of Civil Rights – are directly related to last year’s Supreme Court victory involving Ms. Stephens, who was fired from her job at a Michigan funeral home after she came out as a transgender woman. Her case and two others, collectively referred to Bostock v. Clayton County, Georgia, ended with the high court etching into law the principle that every member of the LGBTQ community in America is protected from discrimination.
It is a seminal decision that Ms. Stephens, sadly, didn’t live to see. She died of kidney disease less than a month before the court issued its historic ruling. Though she’s sorely missed, there is comfort in knowing her legacy is already generating far-reaching change, with much more, hopefully, to follow.
President Biden cited Bostock as part of the legal foundation underpinning of his executive order, which stated:
“Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.”
After enduring – and helping fight against – four years of relentless attacks on the LGBTQ community from the previous administration, reading those words from our new president made my heart soar.
The changes resulting from that order will have a vast impact.
Alphonso David, president of the Human Rights Campaign, described the order’s effect this way:
“By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life. While detailed implementation across the federal government will take time, this Executive Order will begin to immediately change the lives of the millions of LGBTQ people seeking to be treated equally under the law.”
Mr. David added that the action is “the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president.”
Aimee Stephens helped make that possible.
The Bostock decision also plays a prominent role in the Rouch World case, which involves two businesses: Rouch World, which rents out its property in Sturgis for weddings and other gatherings, and Uprooted Electrolysis in Marquette.
After Rouch World refused to let a lesbian couple use its facility for their wedding, and Uprooted refused to provide electrolysis services to a transgender woman, both aggrieved parties filed complaints with the Michigan Department of Civil Rights (MDCR), alleging sex discrimination in a public accommodation. The businesses then sued MDCR in the Michigan Court of Claims, arguing that MDCR could not investigate them because LGBT people are not protected against discrimination under current Michigan civil rights laws.
The Court of Claims correctly held that, because of the Bostock decision, transgender people are protected under our civil rights laws. However, when it came to the issue of sexual orientation, the court held that it was constrained by a 1998 Michigan Court of Appeals decision, Barbour v. Department of Social Services, which held that gay and lesbian people were not protected under our civil rights laws. But the legal rationale in the Barbour decision is outdated; Bostock should now take precedence. Based on that, MDCR is asking the Michigan Supreme Court to overturn Barbour and hold that gay and lesbian people are protected against discrimination under the category of sex in Michigan’s current civil rights laws.
In short, the Michigan Supreme Court is in a position to address the question of whether Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) includes protections against discrimination based on sexual orientation.
In a case that is being closely watched nationally, we’ve just weighed in on the side of the MDCR, filing a detailed “friend of the court” brief supporting the state’s case. Signing on to that brief is a large number of Michigan advocacy groups including Affirmations, Equality Michigan, LGBT Detroit, Trans Sistas of Color, Stand with Trans, Out Front Kalamazoo, and Out Center of Southwest Michigan. Also signing on are such national groups as the national ACLU, Human Rights Campaign, National Center Lesbian Rights, and Freedom for All Americans.
We think the law is clearly on the side of inclusion, and joined together to make the strongest argument possible when the Michigan Supreme Court considers Rouch. But relying on court decisions is not enough. This is why, moving forward on a parallel track, we are fully supportive of the Fair and Equal coalition’s effort to address the issue at the ballot box, with the goal of placing a measure in front of voters next year. The intent is to remove any doubt about protections for LGBTQ people by adding language in ELCRA to explicitly include them.
Whether through the courts or Michigan’s voters – and, hopefully through both – the crucial point is this: We need to guarantee beyond any doubt that our state’s civil rights laws provide protections for LGBTQ people that are every bit as strong as their federal counterparts.
The legacy of Aimee Stephens demands nothing less.