Dana Nessel, the rock star Michigan attorney who was part of the legal team that made same-sex marriage the law of the land in the USA, has formed a ballot committee to collect signatures to put changing the state constitution to protect members of the LGBT community to voters in 2016. If passed, the measure would then compel state legislators to update the Elliott-Larsen Civil Rights Act to include lesbian, gay, bisexual, and transgender people to protect them from violence and discrimination in employment and housing. According to the Detroit Free Press, Nessel made the decision almost immediately after learning their team had prevailed in the Supreme Court marriage equality case:
That decision came out on a Friday and it was such a wonderful day and then I went into my office on Monday and I was hearing from people who were being fired after announcing their engagement,” she said. “We believe that no one should lose their job based on sexual orientation, sex or gender identity.
Once they have petition language approved by the Secretary of State’s office, they will need to collect 315,654 valid signatures of registered Michigan voters to get the measure on the 2016 ballot.
While everyone who advocates for LGBT rights certainly agrees that the Elliott-Larsen Civil Rights Act needs to be changed to protect members of the LGBT community, the path forward to achieving that is not something that all advocates agree with. The day before Nessel announced her ballot committee, Equality Michigan Executive Director Stephanie White published an op-ed in Between the Lines which pushed for a legislative approach rather than a ballot proposal. If we lose in the legislature, she points out, we can keep trying every session. If we lose at the ballot box, however, it may be years before we can get another chance. Also, those most heavily impacted by the decision are the same folks most likely to be targeted for hateful rhetoric and even violence during the campaign, something that is, sadly, playing out vividly in the Houston Equal Rights Ordinance battle in Texas.
Here’s White’s take:
[Y]ou may ask, why don’t we just put it to a vote? Lots of us have looked at that 70 percent public approval and felt encouraged. We want to believe that our friends and neighbors will support us this time, but unfortunately we don’t really know if they will. It is a gamble. And like most gambling, it could produce a big payoff, or it could produce a painful cost. The people who will pay that cost are the members of our community who are already most vulnerable: trans people, poor people, and disproportionately, people of color. That’s why we have to first invest in our coalition and first educate the public before we are ready to withstand those attacks. And then, if we decide to proceed, the people who are most vulnerable must be the ones who help us make that decision.
One of the lessons learned from history is that the high approval rating can be easily eroded when the opposition starts attacking our community and trying to drive wedges between us. We have to spend between $3-7 for every $1 they spend just to have a chance at winning a popular vote. That can quickly add up to $15-20 million. And then there’s the moral question of letting the public vote on our basic rights. We call foul (rightfully so) when they vote to deny our rights, so it’s hard to ask them to grant us our rights. Many in our community won’t support that strategy, leaving us divided. And, finally, if we lose, we know from history that we have closed off the path to equality for many years. A huge cost to all of us.
The winning path to protecting our basic rights is longer than any of us would like. But the leadership in our community is smarter, more sophisticated and bigger than ever. And, most importantly, we are united in our commitment to working together until we can stop saying, “It’s time,” and start saying, “It’s done!”
Equality Michigan is not the only group expressing reservations. In fact, Nessel appears to have none of the LGBT activist groups in Michigan on board.
This includes leaders in the trans* community. Amy Hunter directs the Transgender Advocacy Project for the ACLU of Michigan. I asked her for her take on the ballot initiative approach. She told me that trans* community faces daily risks and she fears this approach might exacerbate that. “Even if I thought it was a good idea to put people’s rights up to popular vote I’d still be extremely concerned that the effects of a public campaign on Michigan’s transgender residents haven’t be well considered,” she told me. “We know that the opposition paints a bulls-eye on the transgender community and rolls out the most hateful and demonizing untruths imaginable. Sadly, not only are those scare tactics effective in turning public opinion, which is extremely expensive to bring back but they have a devastating effect on trans people. We’re seeing those scare tactics right now, in real time in Houston. The costs cannot be measured in just dollars, they need to be measured in the potential harm to those already subject to the most risk. Folks on the ground in Houston report increased incidents of violence and harassment against particularly transgender women. Certainly, a gamble as large as a ballot proposition should not be launched without first having engaged the community which is most at risk.”
Involving the trans* community is incredibly important in this effort. Legislators got very close to passing legislation during the lame duck session in 2014 that would have provided civil rights protections to LGBT people. However, at the 11th hour, some legislators decided to exclude the trans* community and that scuttled the entire thing.
While I am emphatically supportive of the overall drive to update the Elliott-Larsen Civil Rights Act, I am concerned about what increasingly appears to be a divisive approach that doesn’t have any of the crucial stakeholders on board. It will be interesting to see how this plays out as it moves forward and if the rest of the LGBT activist community comes on board or decides to sit it out in favor of working in the legislature to pass laws that accomplish our goals. The history of LGBT activism is one of coordinated efforts paying off in rapid, progressive change. It will be truly unfortunate if this solo effort gets in the way of finishing the job.