By Aishwarya Rajan and Mia Machado
WASHTENAW COUNTY, MI – In support of his mantra “Justice, Justice, Shall you Pursue,” Prosecuting Attorney Eli Savit here has requisitioned that all hate crime cases involving Michigan’s Ethnic Intimidation law encompass sexual orientation and gender identity when using the phrases “based on sex” and “based on gender.”
Chief Assistant Prosecuting Attorney of Washtenaw County, Victoria Burton-Harris, released the decision by Savit regarding this new interpretation and execution of Michigan’s Ethnic Intimidation law.
Savit stipulated that, while Michigan laws fail to explicitly prohibit hate crimes against a person’s sexual orientation or gender identity, the Supreme Court’s ruling in Bostock v. Clayton County establishes a precedent of its implied protections.
Attorney Savit points out a concerning upward trend in the perpetration of hate crimes, especially those involving sexual orientation and gender identity.
The Federal Bureau of Investigation reported that in 2020 alone, gender-identity based hate crimes rose from 2.2 percent to 2.7 percent. When analyzed alongside sexual orientation hate crimes, it was concluded that they made up for 16.7 percent of all hate crimes, which is “the third largest category after race and religion.”
PA Savit asserted that, regardless of this data, Michigan law continues to lack explicit protections for at-risk groups.
For example, he noted, Michigan’s Ethnic Intimidation law provides that a person is “guilty of ethnic intimidation” if—for certain categories of crimes—that person acted “because of [the 
victim’s] race, color, religion, gender, or national origin.”
Sexual orientation and gender identity, however, are never mentioned, Savit points out.
The lack of explicit language providing protections based on an individual’s sexual orientation and gender follows a common trend among court decisions regarding the definition of “discrimination because of sex.”
There have been several accounts of the Supreme Court’s ruling in line with cases such as Bostock v. Clayton County, that declare the Civil Rights Act’s provisions already imply discrimination based on sexual orientation and gender identity.
The U.S. Supreme Court’s ruling on Bostock held that it is “impossible to discriminate against a person” on the basis of sexual orientation or gender identity “without discriminating against that individual based on sex.” Thus, protections are already implied, Savit said.
The Supreme Court maintains that the same argument is true for protections regarding crimes based on gender identity.
The court, Savit explained, reasoned that if an employer fires “a transgender person who was identified as a male at birth but who now identifies as a female,” but retains an “otherwise identical employee who was identified as female at birth,” the employer is intentionally penalizing the former individual on the basis of sex.
Decisions such as Bostock, PA Savit explains, have had “obvious ramifications for Michigan’s Ethnic Intimidation law.
While not clear, he added, if Michigan’s Ethnic Intimidation law’s inclusion of “gender” refers to “gender identity” or remains synonymous to sex, “Bostock’s reasoning suggests that the Ethnic Intimidation law’s prohibition on acts perpetrated ‘because of gender’ includes those perpetuated based on sexual orientation and gender identity.”
Though these “issues are still being sorted out by the Michigan courts,” Savit maintains that it is expected that crimes based on sexual orientation and gender identity will be included in these protections.
This assumption, he explains, follows the Michigan Supreme Court’s decision to vacate and remand the 2020 ruling by Michigan’s Court of Appeals in People v. Rogers, which stated “Michigan’s ethnic discrimination law [did] not prohibit crimes that were motivated on the basis of a person’s gender identity.”
The Michigan Supreme Court’s “reconsideration,” he noted, came in light of the Bostock decision.
Savit points out however, that People v. Rogers was not the first time that Michigan law has lacked clarity when ruling on sexual orientation and gender identity, and strayed from an interpretation “in a manner similar to the federal law at issue in Bostock.”
Late last year, the Michigan Court of Claims approached the Elliott-Larsen Civil Rights Act in a similar manner, arguing that that the provision’s prohibition of “discrimination because of sex” included protections for gender identity but lacked explicit verbiage and thus protections for any “discrimination on the basis of sexual orientation.”
The Court of Claims ruling on sexual orientation, Savit argues, “was based on what it deemed binding” under the “pre-Bostock, precedent from the Court of Appeals.”
The court’s decision, however, has now been appealed to the Michigan Supreme Court.
Given the “highly persuasive” precedent of Federal law, Savit believes it is likely that the Michigan Supreme Court will not only accept the appeal, but reverse the decision made by the lower court. The alignment of this decision with Bostock would deem the phrase “because of sex” as indicative of sexual orientation and gender identity.
Although the Elliott-Larsen Civil Rights Act “is a different statute,” Savit maintains that its “ramifications for Michigan’s ethnic intimidation law are clear.”
He stated that it is “nearly impossible to conceive of a scenario” in which…discrimination ‘because of sex’ in Elliott-Larsen, encompasses sexual orientation and gender identity,” but “acts ‘because of gender’ in the Ethnic Intimidation law do not.”
Because of these arguments and the legal statutes presented by Prosecuting Attorney Savit, the Prosecutor’s Office will now render Michigan’s Ethnic Intimidation law’s verbiage as inclusive of crimes also committed on the basis of sexual orientation and gender identity.
Assistant Prosecuting Attorneys (APAs) should thus file charges under Michigan’s ethnic-intimidation law wherever the “evidence demonstrates that the victim was targeted because of sexual orientation or gender identity,” according to Savit’s orders.
Attorney Savit’s decisions “will remain in effect until and unless expressly rescinded by the Prosecuting Attorney…it will only be rescinded “if a binding, final decision to the contrary is issued by an appellate court,” according to Savit’s office.
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