In Rouch World, LLC v. Department of Civil Rights, the Michigan Supreme Court expounded on its understanding of the meaning of three words in a state statute: “because of . . . sex.”[1] At issue was whether the Elliott-Larsen Civil Rights Act’s (ELCRA’s) prohibition of sex discrimination in places of public accommodation extends to discrimination because of sexual orientation. Leaning heavily on the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia,[2] the court held in a 5-2 decision that “[d]iscrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex.”[3] Thus, the court held, “the denial of ‘the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service’ on the basis of sexual orientation constitutes discrimination ‘because of . . . sex’ and, therefore, constitutes a violation of the ELCRA.”[4]

Background

The ELCRA, passed in 1976, states in relevant part that “a person shall not . . . deny an individual the full and equal enjoyment . . . of a place of public accommodation . . . because of . . . sex.”[5] In 2018, the Michigan Civil Rights Commission (MCRC) issued guidance opining that the statute’s prohibition on sex discrimination includes a prohibition of discrimination the basis of sexual orientation and gender identity.[6]

Two acts of alleged discrimination formed the basis for this case. In 2019, a same-sex couple alleged that Rouch World (an event center run by the Rouch family) declined to host their wedding ceremony because of their sexual orientation.[7] Also in 2019, a separate plaintiff who identified as a transgender woman alleged denial of service by Uprooted Electrolysis, a hair removal service, because of the plaintiff’s gender identity.[8]

The couple and the individual filed complaints with the MCRC, which opened investigations into the companies for alleged sex discrimination under the ELCRA.[9] The companies jointly filed a lawsuit against the Michigan Department of Civil Rights seeking a declaration “that sexual orientation and gender identity are not encompassed by the ELCRA’s prohibition of sex discrimination . . . and an injunction” against the MCRC’s investigations and continued adherence to the 2018 guidance.

The lower court, bound by a 1993 Court of Appeals opinion, held that the prohibition on sex did not encompass sexual orientation, but that it did include gender identity. The Department of Civil Rights appealed as to the holding regarding sexual orientation. Thus, the Michigan Supreme Court addressed only the question of “whether the prohibition on discrimination ‘because of . . . sex’ in the ELCRA applies to discrimination based on sexual orientation.”[10]

Holding and Opinions

The Michigan Supreme Court held that “[d]iscrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex.”[11] In doing so, the court did not decide what the term “sex” means. Instead it held that “because of” means “but for” and said the result would be the same regardless of the definition of sex adopted.[12] Relying heavily on the Supreme Court’s analysis in Bostock, the court opined that “sexual orientation is inextricably bound up with sex because a person’s sexual orientation is generally determined by reference to their own sex.”[13] The court reasoned that if the one of the members of the same-sex couple that filed a complaint against Rouch World were a man, rather than a woman, then “Rouch World would not have denied its services.”[14] Thus, “but for Johnson’s sex, Rouch World would have rendered its services to Johnson.”[15] Therefore, it concluded, “it is impossible to discriminate against a person for their sexual orientation without discriminating against that individual based on sex.”[16]

The court reached this conclusion even while acknowledging this outcome was likely unforeseen by the legislature in 1976. Although “the principal evil motivating the 1976 Legislature to prohibit discrimination on the basis of sex may have been the preferential treatment of males to the detriment of females,” the court explained, “this motivation does not curtail other applications of the plain statutory language.”[17]

The court explicitly did not decide whether sex discrimination occurred in this case, or whether the public accommodations may have other defenses to the application of the ELCRA.[18]

Justices Zahra and Viviano issued separate dissenting opinions. Justice Zahra argued that the original public meaning of the statute precludes the majority’s new interpretation.[19] Discrimination “because of sex” at the time meant something exclusive and separate from discrimination based on sexual orientation—specifically, discrimination against a woman because she’s a woman, or against a man because he’s a man, not because of who the man or woman is attracted to.[20] Contemporary dictionary definitions and corpus linguistics all point to mutually exclusive definitions of sex and sexual orientation.[21] He also examined the legislative history, noting that the drafting committee considered and explicitly rejected adding “sexual orientation” to the statute. [22]Justice Zahra recounted that “[o]ne of the bill’s cosponsors. . .later admitted that it was very unlikely that the ELCRA would have made it out of the House had it been amended to include sexual orientation as a protected class.” [23] In light of this evidence, he would have held that “[w]here the Legislature has considered certain language and rejected it in favor of other language, the resulting statutory language should not be held to explicitly authorize what the Legislature explicitly rejected.”[24] Lastly, he noted that the Department of Civil Rights itself rejected any interpretation of “sex” to mean “sexual orientation” from 1976 until 2018.[25]

Justice Viviano agreed with Justice Zahra’s conclusion regarding the original public meaning of the term “sex,” but he wrote separately to focus on the words “because of.”[26] He concluded that the majority’s “but-for” interpretation was wrong because it failed to account for the defendant’s motive—specifically, he argued, the prohibited “discriminatory action [must be] because of some belief or animus with regard to the protected characteristic.”[27] In support, he conducted an extensive review of the meaning of “because of” and “discrimination” in caselaw and concluded that “because of” includes a motive requirement.[28] Lastly, Justice Viviano explained that the majority misapplied its own but-for test by ignoring the fact that a person’s sexual orientation—not just his or her sex—must factor into discrimination based on sexual orientation.[29] He likewise argued that the test, as applied, doesn’t work for a bi-sexual orientation and is thus is underinclusive, demonstrating that sex is not, in fact, a but-for cause when sexual orientation is the motivating factor.[30]

 

*Note: attorneys with the author’s firm represent the plaintiffs in these cases.


[1] No. 162482, 2022 WL 3007805, at *4 (Mich. July 28, 2022); see Mich. Comp. Laws § 37.2302.  

[2] 207 L. Ed. 2d 218, 140 S. Ct. 1731 (2020).

[3] Rouch World, 2022 WL 3007805, at *15.

[4] Id.

[5] Mich. Comp. Laws § 37.2302.

[6] Rouch World, 2022 WL 3007805, at *4.

[7] Id. at *5.

[8] Id.

[9] Id.

[10] Id. at *6 (cleaned up).

[11] Id. at *15.

[12] Id. at *11.

[13] Id. (cleaned up).

[14] Id. at *12.

[15] Id.

[16] Id. (cleaned up).

[17] Id. at *15.

[18] Id. at *6 n.5.

[19] Id. at *17, 20–24 (Zahra, J., dissenting).

[20] Id. at *24 (Zahra, J., dissenting).

[21] Id. at *20 & n.37, *26–27 (Zahra, J., dissenting).

[22] Id. at *24–25 (Zahra, J., dissenting).

[23] Id. at *25 (Zahra, J., dissenting).

[24] Id. at *25 (Zahra, J., dissenting).

[25] Id. at *26 (Zahra, J., dissenting).

[26] Id. at *29 (Viviano, J., dissenting).

[27] Id. at *29–30 (Viviano, J., dissenting).

[28] Id. at *30–36 (Viviano, J., dissenting).

[29] Id. at *40–41 (Viviano, J., dissenting). .

[30] Id. at *42 (Viviano, J., dissenting).

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