Nov. 30 2011 12:00 AM

For LGBT advocates, a series of unfortunate legislation


If it was a game, Gretchen Whitmer won. Just ask Rick Jones.

When Jones, a Republican state senator from Grand Ledge,
gives his side of the anti-bullying saga that took place at the Capitol
four weeks ago, he blames Democrats — namely Whitmer , the Democrats’
Senate leader — for staging what turned out to be a

national media

As Jones tells it, the story of how 16 words — “This
section does not prohibit a statement of a sincerely held religious
belief or moral conviction …” — became a “license to bully” began Nov.
2, the same day the Senate passed its controversial anti-bullying bill
along party lines. 

Jones, the bill’s primary sponsor, said he’s being wongly
labeled as the architect of the religious exemption language. In an
interview last week, he said that on the day of the vote the Republican
caucus attorney, Fred Hall, “was concerned that nobody misinterpret the
bill as taking away First Amendment rights. He wrote the clause and
added it, I did not. That was right before we voted.” From there, the
bill reached the Senate floor. 

“As usual, there was some debating on the floor,” Jones
said. “No one came to me from the other side of the aisle and said ‘I
have 12 Democratic votes for you if you take that line out.’ No one did

“Had Senate Minority Leader Whitmer walked across the
floor … I would have jumped through hoops to (strike the language). But
nobody bothered to say anything. Instead, like a good politician, she
twisted it for political gain and got a lot of national media attention
out of it.”

Whitmer responded in an interview Monday — after a brief chuckle.

“If the consequences weren’t so serious about kids’
safety in schools, that would be funny. … It’s absolutely pathetic and
ludicrous to say it’s anyone’s fault but their own (that the Senate’s
bill passed with the language),” Whitmer said. “I understand they’re
mad they became the laughing stock of the nation. But they need to man
up and take responsibility.”

It’s been a month since the high-stakes politicking. On
Tuesday, the Senate passed nearly unanimously a different version of an
anti-bullying bill, sans the religious exemption, sending it to Gov.
Rick Snyder’s desk for final approval. Jones and Whitmer both voted for

For leaders of Michigan’s gay community,
though, the bill falls short of what they sought: Specific protection
for GLBT individuals and those who are perceived as gay. 

They say the measure remains but one
example of how this Legislature refuses to include protections in state
law for LGBT individuals, even though several communities throughout
the state — including Lansing and East Lansing — have done so.

Five bills in particular are up for consideration, while
another is on its way to Snyder’s desk, that advocates see as a
coordinated effort by mostly conservative lawmakers to “reframe the
narrative” from thwarting LGBT rights to economic concerns or religious
freedom, one political activist said.

“I’m not a big conspiracy theorist, but so much of this
is going on across the country,” said Amy Hunter, president of the
Equality Michigan Pride PAC. “There seems to be at all levels —
statewide office, the Legislature, the state attorney general — this
sort of attack on gay and transgender communities.”

Whitmer said whether the legislation is coordinated, “I
certainly think it appears that way. It’s a pattern of ignorance and
intolerance that I think is detrimental to individuals in our state. …
I think it’s a social agenda. I don’t know if it’s coordinated but it’s
certainly a pattern.”

Republicans interviewed for this story
all deny that what’s going on in this legislative session is any sort
of coordinated attack.

Ari Adler, spokesman for Speaker of the House Jase
Bolger, R-Marshall, said, “I don’t think it’s correct to say it’s a
coordinated attack of any kind. That’s not true.” 

Jones also denies it: “Nothing that I have ever done has
attacked people based on LGBT issues. I don’t know of anything, any
movement in Lansing to do that. … I’m not part of any coordinated
effort if that’s the perception.”

State Rep. Joe Haveman, R-Holland, is sponsoring a bill
that would allow counselors at higher education institutions to refuse
service to individuals based on “a sincerely held religious belief or
moral conviction.” Democratic floor leader Tupac Hunter from Detroit
sponsors an identical bill in the Senate. Haveman said on whether his
bill is related to other proposed legislation that could threaten to
strip rights from the LGBT community: “You’re so far wrong on that. …
The gay community, the LGBT community takes everything as an attack on
them. You’re feeding that story.” 

4770, 4771

In May, a Republican representative from
Grandville sought to withhold 5 percent of state funding for Michigan
universities that offer same-sex partner health benefits. That
ultimately failed after Snyder’s legal counsel advised lawmakers that
it would be unconstitutional because universities act autonomously from
the state.

Dave Agema, R-Grandville, chairman of the House GOP
caucus, said at the time that universities are “not above the law” and
offering same-sex partner benefits flies in the face of the 2004 ballot
initiative banning same-sex marriage in the state. Agema’s amendment
never made it in the budget, but on May 22, he vowed (on Facebook) to
bring back separate legislation to tackle the issue.

House Bills 4770 and 4771, which passed
in the House Sept. 15 and now await Senate approval, would prohibit
public employers — including universities and colleges — from offering
domestic partner benefits and would prohibit such benefits from being a
topic of collective bargaining.

Agema, who could not be reached for comment, often cites
in the media and on his personal Facebook account that the 2004 ballot
initiative should prohibit offering same-sex partner benefits, along
with an opinion from former Attorney General Mike Cox and the state
Supreme Court. But in January, the Michigan Civil Service Commission
approved a benefits package negotiated between the United Auto Workers
and the Office of the State Employer that includes domestic partner
benefits for either same-sex or opposite-sex partners and their

Meanwhile, the House Fiscal Agency reported that the
state would save about $8 million by not having to cover such benefits
in HB 4770. Adler said this is the main reason Bolger supports the bill
— not for social reasons.

“When it came through the House and we passed it, there
are certainly some members of the caucus (for whom) that’s a domestic
partner issue. Others say it’s an economic issue,” Adler said. “We
pushed it through primarily looking at what’s going on with the

But cost projections were off dramatically. In September,
state Personnel Director Jeremy Stephens told the Civil Service
Commission that preliminary numbers show fewer than 100 people within
the state’s 47,692-member workforce taking advantage of the benefits
for a total cost to the state of $600,000

Says Whitmer: “I don’t think there is an economic benefit
from these pieces of legislation. That’s what (Republicans) claim as a
justification for everything they push. They know how desperate the
people of Michigan are for jobs. I think it’s a phony argument to
justify intolerance.”

Moreover, opponents — including the Michigan Department
of Civil Rights, the ACLU of Michigan, the Michigan Townships
Association, Equality Michigan and the Michigan State Employees
Association — say the legislation would give the state a reputation of
intolerance, keeping out and driving away talented employees. Also,
opponents say the 2004 same-sex marriage amendment is not indicative of
voters in 2011.

“An anti-equality ballot initiative passed almost a
decade ago no longer represents the will of Michigan voters — a fact
that clearly demonstrates that discrimination should not be written
into a constitution,” Emily Dievendorf, policy director for Equality
Michigan, said in an e-mail. 


State Rep. Tom McMillin, R-Rochester
Hills, introduced House Bill 5039 on Oct. 5. It’s before the House’s
Judiciary Committee, though it is not clear whether the committee will
take action on it this year.

The bill seeks to amend the state’s Elliott Larsen Civil
Rights Act of 1976 by prohibiting state agencies or local units of
governments — including schools and a “community college district” —
from adopting rules, regulations or ordinances “that includes, as a
protected class, any classification not specifically included as a
protected class under this act.” It also voids “Any existing ordinance,
rule, regulation, or policy that includes, as a protected class, any
classification not specifically included as a protected class under
this act.” 

Part of what the Elliott Larsen Act does is prohibit
discriminatory practices based on “religion, race, color, national
origin, age, sex, height, weight, familial status, or marital status.”

McMillin, an accountant and business owner in his second term, could not be reached for comment.

The Lansing and East Lansing city
councils have each approved resolutions against the proposed
legislation. Lansing’s Human Rights Ordinance as amended in 2006
prohibits discrimination in “housing, employment and public
accommodations” based on “sexual orientation, gender identity, gender
expression and student status” — categories that are not included in
the Elliott Larsen Act. In its resolution urging local legislators to
vote against HB 5039, the Council states: “The state has no legitimate
interest in restricting the ability of local units of government to
adopt anti-discrimination ordinances that reflect the values and unique
circumstances of our communities.

“Proposed House Bill 5039 would void the City of
Lansing’s ordinance prohibiting discrimination based on sexual
orientation, gender identity, gender expression, and student status.”

Adler said Bolger has not yet taken a position on
McMillin’s proposal. Adler said he’s skeptical that the House will vote
on this bill this year.

Hunter, of Equality Michigan’s Pride PAC, offered this
possibility about HB 5039’s power, if adopted: “It may also prevent
school districts from enacting enumerated anti-bullying policy.
Wouldn’t that be convenient?”


Named the “Julea Ward Freedom of Conscience Act,” the
House version of this bill was introduced on the same day as McMillin’s
HB 5039. The Senate’s identical version — sponsored by Tupac Hunter —
was referred to a committee in June.

These bills would prohibit universities and
colleges from disciplining or discriminating against counseling or
social work students who refuse their services “that conflict with a
sincerely held religious belief or moral conviction of the student, if
the student refers the client to a counselor who will provide the
counseling or services.”

The proposals are in response to an incident at Eastern
Michigan University where Julea Ward, a graduate student, was
reportedly kicked out of a program for refusing to counsel someone who
was gay and referred them to another counselor. reported
in October that EMU officials had removed Ward for violating the
American Counseling Association’s code of ethics. The case is before
the state Court of Appeals.

Haveman, who is sponsoring the House version,
said the bills are being misconstrued as blocking the rights of LGBT
individuals. On the contrary, Haveman said, Ward was “treated very
poorly based on her religious beliefs. She was really discriminated
against based on her religious beliefs.”

Amy Hunter, of Equality Michigan’s Pride PAC, said
Haveman’s argument is “an attempt to reframe the dialogue around First
Amendment protections. It’s not really about allowing her to exercise
her conscience. In my thinking, she should go into a different line of
work — counseling is not about her, it’s about the client.”


The Legislature agreed on an anti-bullying bill Tuesday
that requires school districts that don’t already have an anti-bullying
policy to adopt one within six months after the governor signs the bill.

However, it’s not what LGBT advocates had in mind. That
vision would have afforded protections specifically based on sexual
orientation and gender identification — as well as for any other child
— and would require more stringent reporting on the part of schools,
Hunter said.

Equality Michigan’s Amy Hunter praised the decision to
remove the controversial “license to bully” language, but she still
condemned the bill overall.

“It’s still not enumerated,” she said, referring to such commonly targeted characteristics such as effeminacy.  “It doesn’t have teeth. It doesn’t have the back-end reporting requirements that are needed.

“Studies don’t just suggest, they pretty much
unequivocally say that states that have non-enumerated anti-bullying
bills, or districts, show no difference in the amount of bullying in
relation to states or school districts (with them). They might as well
not even have the darn thing.”

But Jones, who sponsored the controversial Senate bill
that fell flat, sees it differently. He said, “Any time you add
enumerations you exclude children. You could never possibly list every
reason a child can be bullied. It’s a better policy legally to say no
child be bullied.”

Jones also said if all bullying cases
had to be reported by school boards, “you’re adding an unfunded
mandate, then it gets very hard to pass a bill. My goal is to get
something done. Let’s get something passed. We’ve been talking about
this for years.”

Adler echoed Jones’ concerns about
adding enumerations to the bill. He also said, “We ended up using a
brand new bill that had already been in the House because (the Senate’s
version), in name alone, was toxic.” 

Do they have legs?

While only one of these bills is guaranteed
to go before the governor, they all could. For now, it’s uncertain how
Snyder will react to any of this legislation if it passes the House and
Senate. A request for comment from the Governor’s Office was not

Dievendorf, of Equality Michigan, said Snyder has a chance to prove himself on whether he supports any of these proposals.

“Governor Snyder prides himself on being a pragmatist
moderate. He is from Ann Arbor. We can assume that, like all of us, he
has friends he would do real harm to by approving legislative
anti-equality initiatives. The fair-minded in Michigan are just waiting
to see if he will be the grown up in the room or cave to partisan
politics,” she said in an e-mail.

For Amy Hunter, HB 5039 is “the thing I
really have my head around.” That’s the proposal that would strike down
local communities’ non-discrimination ordinances and prevent them from
enacting anything more stringent than the 1976 Elliott Larsen Civil
Rights Act. “I don’t want to go the route of the courts with it,” she

But local units of government are where
Hunter also sees progress being made on equal protections based on
sexual orientation and gender identification. The Pride PAC endorses
candidates in local elections.

“We ran a modest but successful and well-received
campaign to have everyday folks nominate people as pro-equality
candidates to try and get people interested in the electoral process,
particularly at the local level,” she said. “These are folks who have a
major impact on daily lives. … We’re trying to make the argument of why
it’s important for the state, for the well being of everyone in the
state, why it makes economic sense to embrace diversity. These are not
esoteric issues — it’s for the well being of the state.”

House Bills

Sponsor: Rep. Dave Agema, R-Grandville

Status: Passed House, in Senate Committee of the Whole

What it would do: Eliminate domestic
partner benefits for public employees — including those at universities
— and also restricts such benefits from collective bargaining.

Supporters  say:
It would save taxpayers about $8 million, according to the House Fiscal
Agency. Proponents also say it’s illegal for public employees to
receive domestic partner benefits, in light of a 2004 amendment banning
same-sex marriage.

Opponents say: The amount to be saved is
questionable — the state personnel director the real annual cost is
more like $600,000 — and it’s uncertain who would leave the state or
not come to work here because of the ban. Opponents also say it would
be illegal to put such requirements upon autonomous universities.

House Bill 5040/ Senate Bill 518

Sponsors: Rep. Joe Haveman, R-Holland; Sen. Tupac Hunter, D-Detroit

Status: Both bills are in committee

What it would do: Allow
student counselors and social workers to refuse service to individuals
when there is a conflict of religious or moral beliefs. 

Supporters say:
After a graduate student at Eastern Michigan University was punished
for not counseling someone who was gay and referred them to someone
else because of her religion, her religious freedom was blocked by the

Opponents say: This legislation would
allow counselors and social workers to discriminate LGBT individuals by
refusing to serve them.

House Bill 5039

Sponsor: Rep. Tom McMillin, R-Rochester Hills

Status: Introduced Oct. 5; in House Judiciary Committee

What it would do:
Restrict local governments and school districts from adopting
non-discrimination policies that go beyond the 1976 Elliott Larsen
Civil Rights Act. It also would void current policies, like the city of
Lansing’s Human Rights Ordinance. Elliott Larsen Act does not protect
sexual orientation, gender identity or student status.

Supporters say: McMillin could not be reached for comment. 

Opponents say: This bill would eliminate local communities’ ability to extend civil rights protections for individuals.

House Bill 4163

Sponsor: Rep. Phil Potvin, R-Cadillac

Status: Passed House Nov. 10, passed Senate Tuesday. Awaits Gov. Snyder approval

What it would do: Create
a statewide anti-bullying policy that would require school districts to
institute such policies within six months after adoption.

Supporters say:
At least there isn’t language (which was in a previous version) that
would have exempted statements based on religious or moral beliefs. A
non-enumerated bill means individuals aren’t singled out and everyone
is covered. Signals an end to a several-year debate on adopting an
anti-bullying policy.

Opponents say:
The bill won’t have teeth. Those who wanted a strong bill said an
enumerated bill — that specifically protects LGBT individuals — with
stronger reporting requirements would have been effective, as is shown
in other states.