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Ann Arbor, MI – Washtenaw County Prosecutor Eli Savit announced today that he has issued legal guidance to facilitate the charging of hate crimes that target victims based on their sexual orientation or gender identity.
The legal guidance issued Friday morning directs Assistant Prosecuting Attorneys to charge, under Michigan’s Ethnic Intimidation law, crimes that target a person based on their sexual orientation or gender identity. A violation of the Ethnic Intimidation law is a felony punishable by up to two years in prison.
Michigan’s Ethnic Intimidation law, the legal guidance noted, does not “expressly prohibit crimes based on a person’s sexual orientation or gender identity.” It does, however, prohibit crimes that targeted a victim because of their “gender.” And in recent years, the guidance notes, “courts have ruled that similar provisions prohibiting discrimination ‘because of sex’ also prohibit discrimination on the basis of sexual orientation and gender identity.”
Most prominently, in 2020, the United States Supreme Court ruled in Bostock v. Clayton County that the Civil Rights Act’s prohibition on discrimination “because of sex” necessarily prohibits discrimination on the basis of sexual orientation and gender identity. Michigan courts are still sorting out what the Supreme Court’s ruling means for Michigan law. But, the guidance notes, “all signs point” to Michigan courts ultimately concluding that Michigan’s Ethnic Intimidation law covers acts committed on the basis of a victim’s sexual orientation or gender identity.
That is because federal law is “highly persuasive” when determining the contours of Michigan law. And a flurry of recent court activity indicates that the Michigan Supreme Court is ultimately likely to conclude that Michigan’s Ethnic Intimidation law covers LGTBQ-targeted hate crimes.
In light of these recent legal developments, and “the statute’s plain text,” the guidance concludes that “Michigan’s ethnic intimidation law is best read to encompass acts committed because of a person’s sexual orientation or gender identity.” The guidance thus directs Assistant Prosecuting Attorneys to file charges under the Ethnic Intimidation law wherever a crime targets a victim based on sexual orientation or gender identity, the elements of the charge are otherwise met, and the charge is in the interests of justice.
The directive notes that hate crimes against the LGBTQ community are at “unacceptably high levels.” According to FBI data, hate crimes based on sexual orientation are “the third largest category after race and religion,” and hate crimes based on gender identity are rising.
“Everyone in our community has a right to feel safe. Nobody should ever be the target of a crime simply because of who they are or who they love,” Savit said. “Hate crimes are a particularly pernicious category of crime, because they send a message that a person has been targeted because of who they are.”
“LGBTQ-targeted hate crimes are a serious issue across the country,” Savit continued. “And recent legal developments have given us a hook to send a clear message: We will not tolerate crimes that target members of our LGBTQ community.”
The full legal guidance is available for the public to view at https://www.washtenaw.org/DocumentCenter/View/19590/Legal-Guidance-Hate-Crimes-Based-on-Sexual-OrientationGender-Identity-.