Glass Half Full? Finding Hope in the Face of Michigan's Assault on LGBT Equality

POST BY Jay Kaplan Nancy Katz & Margo Dichtelmiller LGBT Legal Project Staff Attorney

I’m a “glass half full” kind of guy, but it hasn’t been easy these past two months to feel optimistic about prospects for LGBT equality in Michigan.

That’s because we’ve seen a sadly high number of bad case decisions. Consider some of the rulings we’ve endured this summer:   

  • On July 6, the Michigan Court of Appeals held that same-sex co-parents cannot be considered parents for parenting time if they were not married to the legal parent (even though Michigan unconstitutionally prohibiting them from doing so during their relationship). 
  •  On August 2, the Michigan Supreme Court, by refusing to get involved with this issue, created a status quo where LGBT co-parents can have their children unilaterally taken away from them by their ex-partners and and have no remedy available to them in Court.  
  • On August 18, federal District Court Judge Sean Cox held that a funeral home director was justified in firing Aimee Stephens, a transgender woman, because  of his religious belief that being transgender is wrong, trumps any and all civil rights laws, allowing religion to be used as a sword to gut civil rights protections.  
  • On August 23, federal District Judge Nancy Edmunds dismissed the ACLU’s challenge to the Secretary of State’s gender marker change policy.  While the Secretary of State’s revised policy does include a passport to get a gender change on a license or State ID,  eliminating a surgery requirement, the policy still leaves behind the most vulnerable of our transgender community, those legal immigrants who cannot obtain a US passport and those people living in poverty who cannot afford a passport.
  • On August 22, a Texas federal judge recently blocked enforcement of the Obama Administration’s policy on transgender students’ access to restrooms in public schools, resulting in transgender students being singled out for discrimination and stigmatization regarding their bathroom use. And Michigan is one of the states that is part of the challenge, thanks to our Attorney General Bill Schuette who apparently doesn’t  believe that transgender students should be accorded the same dignity as others regarding use of public toilets. 

I’m tired of writing about bad case decisions, pointing out the flawed legal analysis and negative ramifications of these decisions. But these rulings have left me with little choice but to ask: What is going on here and what does this mean for the cause of LGBT rights?  After all the celebrating that we have done regarding obtaining marriage equality, why is this happening?  

Part of this is due to the backlash towards the U.S. Supreme Court’s decision on the freedom to marry. Opponents of LGBT equality have lost the marriage fight and now they are looking for other ways to slow down or undermine this progress.  That is why we see a proliferation of bills that allow people to discriminate against LGBT people based on their religious beliefs (to refuse to issue marriage licenses, rent banquet facilities, bake a cake, make a flower arrangement), although these activities are not of a religious nature. That is why we see transgender people being singled out for discrimination, being painted as sexual predators who pose a threat to others in public restrooms. 

The rationale behind this is that not as many people know transgender people as they do gay people, so myths and mistruths can more easily be used to stoke fear. 

Michigan has a long history of marginalizing LGBT people, their relationships and their families. Although gay couples can now marry in Michigan, it should not be a surprise that some judges, like some members of society, still hold antiquated and outmoded views regarding LGBT families, including whether or not same-sex couples can have and raise children and be recognized as parents.

But there’s a bigger take away here: the fact that no civil-rights movement has depended solely upon litigation to achieve success. Litigation is one strategy, as is legislation—but equally important is working to educate the public in order to change hearts and minds. 

We still have a great deal work to do in making sure that people understand what it means to be transgender and the struggles and obstacles that transgender face in order to live their lives in both honesty and dignity.  We have a great deal of work to ensure that people understand that religious beliefs, though fully protected under constitution, cannot be used to harm  and hurt other people in non-religious settings.  Although we have marriage equality now, people need to understand that LGBT families and parent-child relationships existed years before that June 25, 2015 court decision, and they must not be erased nor ignored. 

That’s a tall order of work to do, but I believe we can do it, using every tactic and strategy at our disposal to make sure my proverbial glass is filled to the top.

Michigan has a long history of marginalizing LGBT people, their relationships and their families.