Brynn Tannehill

What We Learned from Michigan's LGBT Rights Fiasco

Filed By Brynn Tannehill | December 10, 2014 1:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: GOP, Jim Murray, Michigan, nondiscrimination ordinance, Republican Party, strategy, transgender inclusion, wedge issues, with friends like these

michigan.gifLast week, the proposed amendments to Michigan's Elliot Larsen Civil Rights Act (ELCRA) went down in flames. There were two versions of the bill: one which added protections for both sexual orientation and gender identity, and one which only included sexual orientation.

The fully inclusive bill was sponsored by a Democrat, the orientation-only version by Republican Frank Foster. Neither bill made it out of committee.

Additionally, a so-called "religious freedom" expansion that would allow business owners to refuse service and accommodations on the basis of "sincerely held religious beliefs" was added to the bill, then stripped and passed separately in the full Michigan House of Representatives.

As of now, it looks as though all of them are dead. However, there is still a lot to be learned from this fiasco.

First, more mainstream conservatives showed a newer playbook on how to kill non-discrimination ordinances. In the past it mostly involved bussing in hysterical church folks panicked about transgender people in bathrooms. That strategy has increasingly worn thin as more and more cities include public accommodations based on gender identity without marauding hordes of transgender people terrorizing the populace.

As a result, new conservative messaging and strategies seem to have emerged, and LGBT organizations should have their own "takeaways."

1.) Conservatives falsely claim that gender identity is already protected.

In a radio interview, Michigan House Speaker Jase Bolger argued that the Macy v. Holder EEOC case negates the need for gender identity to be included in a civil rights bill, stating: "I think we need to get the policy right, and those court cases seem to show me that somebody's gender identity is already covered."

This is factually incorrect, as the EEOC decision is a bare minimum standard that places a higher burden of proof on transgender people. The EEOC decision only covers employment, and only in circuit court districts where case law has already established that discrimination on the basis of gender identity is sex discrimination under Title VII of the 1964 Civil Rights Act.

The ELCRA amendment would have offered protections in housing, employment, and accommodations. This talking point was used to give a (false) rationale that sounds less bigoted than usual for why it was acceptable to drop the gender identity language.

2.) Dividing and conquering over transgender inclusion remains a viable strategy for anti-LGBT conservatives.

In the past, gender identity protections were a bargaining chip. Now, with no major LGBT organization willing to support a non-inclusive bill, the gender identity protections are a convenient excuse to kill inclusive bills altogether.

House Speaker Bolger staked out a position months ago that he wouldn't let a bill that included gender identity pass, but was open to one with just sexual orientation language.

This was very much a calculated move, designed to fracture the coalition of LGBT organizations (Equality Michigan, the National LGBTQ Task Force, HRC, ACLU, Lambda Legal) and businesses. In the end, this strategy worked exactly as intended: it ended up wrecking the relationship of the two groups -- which had taken years to forge -- while making Republicans look moderate and tolerant of gay people.

3.) New conservative talking point: Refusing to leave the trans community behind is "radical," "left-wing."

Republicans in the Michigan House blamed the bill's failure to pass on the refusal of House Democrats and LGBT organizations to support a non-inclusive bill. Part of the coalition of business leaders supporting the expansion of the ELCRA, led by openly gay AT&T Executive Jim Murray, were open to leaving gender identity out.

divide-and-conquer.jpgAfter Democrats failed to budge, one business coalition leader complained bitterly about the Democratic refusal to abandon the transgender community: "The far left killed it. They are worse than the Tea Party."

Another member of the business coalition remarked, "They shot themselves in the foot."

Republicans were quick to promote this messaging as well: "The extremists on the left were successful in preventing civil rights protections for gays and lesbians in Michigan," Bolger spokesman Ari Adler said late Wednesday.

We can expect to see conservatives continue to intentionally spike civil rights bills this way -- pretend gender identity is already covered, divide and conquer, blame "radical left-wing" LGBT organizations for the measures failing because they refused to leave the transgender community behind.

4.) Conservatives always have the "religious freedom" poison pill to fall back on.

House Speaker Jase Bolger added an expansion of the Religious Freedom Restoration Act (RFRA) to the bill. Ostensibly this would protect business owners from frivolous lawsuits and violations of their religious beliefs. In reality, it would nullify much of the expansion of the ELCRA, allowing business owners to refuse service, housing, and accommodations on the basis of "sincerely held religious beliefs."

Some media outlets have speculated that it would permit doctors and EMTs to deny emergency care to LGBT people, much as Tyra Hunter, a transgender woman of color, was left to die after an accident while EMTs and doctors ridiculed and mocked her. Other lawyers have pointed out that the "loser pays" provision in the bill would encourage a spate of frivolous religious freedom claims.

In short, conservatives are likely to try to attach RFRA amendments to non-discrimination bills going forward. Either way, they win: if the bill passes, it ends up neutered by the RFRA provisions. If the bill fails because the RFRA portion was inserted, they still win because they never were in favor of LGBT protections to begin with.

5.) LGBT organizations took 2007 to heart.

LGBT organizations never wavered in their refusal to support anything but a fully inclusive bill. This stood in stark contrast to 2007, when HRC continued to support ENDA after gender identity language was stripped.

HRC has so far made good on their promise that they would never again support a non-inclusive bill. This was significant, given that sticking to their principles cost these organizations a chance at a bill for a long time to come, and fractured a coalition it took years to build.

6.) Be careful who you let into the tent.

A great deal of the blame for this outcome falls on Jim Murray, who as far back as September was floating support for a non-inclusive bill. Other off-the-record sources report he was plugging for a sexual orientation-only bill behind the scenes as early as spring of 2014.

Murray used the example of a hungry person ordering a pizza, noting they would be satisfied with "half a pizza." Murray also taunted the transgender community and their allies on Facebook, posting the lyrics to the Rolling Stones song "You Can't Always Get What You Want."

It wasn't long before conservatives picked up this football and ran with it. It got bad enough that even Murray's own corporation had to issue a statement saying, "However the legislature decides to move forward, AT&T will only support a fully inclusive bill."

Even though Murray left the business coalition, the fatal damage had been done.

Going forward, LGBT organizations will have to vet leaders and companies to ensure that they are all on the same page when it comes to compromising on gender identity language. Having bits and pieces of your coalition going rogue can and will be exploited by the opposition.

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