Michigan’s “ethnic intimidation” law, MCL 750.147b—colloquially referred to as its “hate crimes” law—does not expressly encompass crimes that were motivated by a victim’s sexual orientation or gender identity. In 2020, however, the United States Supreme Court has ruled that laws which prohibit discrimination “because of sex” also prohibit discrimination on the basis of sexual orientation and gender identity. See Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
As of February 2021, the full impact of the Supreme Court’s ruling on Michigan law has yet to be fleshed out by Michigan courts. It is the view of the Prosecutor’s Office, however, that the plain text of the law, combined with recent Supreme Court caselaw, makes it clear that Michigan’s “ethnic intimidation” law applies with full force to hate crimes perpetuated against members of our LGBTQ community.
Accordingly, effective immediately, the Washtenaw County Prosecutor’s Office will, where the evidence dictates, be charging hate crimes that target a person based on sexual orientation and/or gender identity. This legal guidance will be effective until and unless definitively foreclosed by a final, binding decision by an appellate court.