[NOTE: This piece has been edited to correct a claim that Wayne State University Law School Dean Jocelyn Benson had helped draft the ballot language. This statement, based on civil rights attorney Dana Nessel’s opening remarks, was, apparently, inaccurate. I have corrected this post and issued a correction with audio HERE.]
Last night, the Jim Toy LGBTQ Community Center sponsored a “community conversation” about the Fair Michigan ballot initiative to expand civil rights protections to encompass gender identity and sexual orientation. The event was very well attended with around 200 people making up a standing-room-only crowd on the campus of Washtenaw Community College.
LGBTQ rights pioneer and legendary activist Jim Toy opened the event, talking about where we are at the present time:
My parents said, “At the dinner table we NEVER talk about sex, or politics, or religion because it leads to nothing but arguments.” And I’ve discovered that they were right. And I’ve also discovered that sex, politics, and religion are inseparable. If one comes up, the other inevitably follow. And we’re here, I think, because we are responding to the oppressive confluence of sex, politics, and religion on our lives. And that confluence is exercised, as we know, through discrimination, harassment, and assault on our persons and our property.
Now, if I had MY way, we’d transform sex, politics, and religion into love, justice, and faith in human worth and dignity.
The event started with 3-minute opening statements from civil rights attorney and Fair Michigan founder Dana Nessel, State Representative Jeff Irwin, American Association of University Women Government Relations Coordinator Mary Pollack, Equality Michigan Executive Director Stephanie White, and the coordinator of Michigan ACLU’s Transgender Advocacy Project Amy Hunter.
Nessel started off by talking about why she thinks a ballot proposal is necessary (as opposed to the state legislature passing new laws to expand the Elliot-Larsen Civil Rights Act [ELCRA] or having the courts drive the issue forward.) She told the crowd that, as she researched the issue, she came to realize that there are no protections for women in our state constitution, either. Therefore, their proposal will include gender as one of the protected groups.
Article 1, Section 2 of the Michigan constitution currently says this:
No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.
The ballot proposal, which Wayne State University Law School Distinguished Professor Robert Sedler – a panelist at the forum – helped to write, would, if passed, change it to this (changes in bold):
No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his OR HER civil or political rights or be discriminated against in the exercise thereof because of religion, race, color, GENDER, GENDER IDENTITY, SEX, SEXUAL ORIENTATION, or national origin. The legislature shall implement this section by appropriate legislation. WHEN USED IN LAWS OF THIS STATE PROHIBITING DISCRIMINATORY PRACTICES OR POLICIES BASED ON SEX, RACE, AND OTHER FACTORS, “GENDER” AND “SEX” SHALL BE CONSTRUED TO INCLUDE GENDER IDENTITY AND SEXUAL ORIENTATION.
Rep. Irwin acknowledged that nothing is likely to happen with our civil rights ordinances in the current legislature. However, he is not as pessimistic as Fair Michigan proponents with regard to the chances of success in the legislature in the not-so-distant future. “We need to make sure that our laws catch up to the cultural fact that we are winning,” Irwin said. “I think it’s important at the outset to acknowledge the fact that that we ARE winning. Things are changing. Society’s changing in ways that I see in the legislature and in my Republican colleagues, ways I can promise you that they are afraid of and reckoning with at this very moment.”
“What I can tell you is that we are actually a lot closer [in the legislature] than I think a lot of you think we are,” Irwin continued. “Because, first, next year we ARE going to elect more Democrats and that’s going to help us. And, two, what’s happening is that this massive change in public opinion [regarding LGBTQ issues] is weighing very heavily on many of my Republican colleagues. You may notice that, last session, a Republican introduced the change to Elliot-Larsen to fix this law for the purposes of equality and that was a big step forward. That tells you what I see up there on a daily basis which is that these Republican legislators, particularly the younger ones, they’re realizing that their position on this issue is being overwhelmed by a tidal wave of public opinion. And they’re looking for a way to change their political future. Because right now they’re seeing that if they continue to be bigoted and continue to oppose equality they will have no political future.”
Irwin went on to acknowledge that, while Democrats may not take over the Senate any time soon, term limits will force many of the older Republicans from their seats, many of whom will be replaced by younger, more LGBTQ-friendly Republicans. In other words, we don’t necessarily have to have control of the Senate for legislation to update the ELCRA to be passed.
Mary Pollack talked about the issue from the perspective of a long-time feminist who worked for years on attempting to get the Equal Rights Amendment passed. This initiative, she said, is the best chance for us to finally get equal protections for women into our constitution that has come around in years.
Stephanie White talked about the issue as a long-time “political hack” who analyzes data when making decisions. She told the audience that she looks at a number of independent criteria when evaluating any ballot measure. “First,” she asked, “What do the numbers show? Is there a numerical path forward?” This she said involves not just polling but also modeling which predicts how voters will act. She introduced Amy Mello in the audience. Mello is a data analyst for a group called Freedom for All Americans, a group that rose out of the group Freedom to Marry and won marriage equality measures in states across the country. Mello talked briefly about the modeling her group does and how it differs from polling.
We also have to ask where the public is on the issue, White continued, and how the issue is framed in their minds. If they look at it as a basic human right, as a fairness issue, she said, then we have a path win. “If they see it as a threat to public safety and a threat to personal liberty, then we have to spend an incredible amount of time and money to move them off of that frame.”
Finally, White said that we need to determine if we have the financial resources and infrastructure in place to succeed. It is her opinion that you need to have enough money secured at the start of any effort like this to sustain it. Otherwise you spend most of your time chasing finances rather than on changing minds.
Amy Hunter talked about the importance of laying the proper groundwork before moving forward with letting Michigan voters vote on the civil rights of a woefully misunderstood minority group. “One of the things that is foremost in my mind no matter what path we take is that we have created a culture here in the state of Michigan where good policy can take root and flourish,” she said. We sometimes neglect to “till the ground sufficiently so that a cultural shift can happen in that community,” something that will be essential with this effort since transgender people are the least understood of those who are under the LGBTQ umbrella. “There’s a lot of nuanced education that has to happen,” Hunter said, emphasizing the need to put our resources into “intensive public education”.
Hunter finished by saying, “[The ACLU] will go all in on whatever path makes the most sense and can give us a roadmap to victory that is fully inclusive of the LGBTQ community and that does not, in the process, put communities that are already at risk at further risk of violence or harassment.”
After the opening statements, a panel was convened that included Nessel, Pollack, Hunter, and Wayne State University professor of Constitutional Law Robert Sedler. The panel discussion was moderated with humor and aplomb by Washtenaw County Commissioner Andy LaBarre.
Nessel began by talking about polling Fair Michigan has done that shows roughly 70% support for LGBTQ civil rights in Michigan. She said that, even after poll respondents were read opposition messaging that was used to defeat the Houston Equal Rights Ordinance (HERO) last month that distilled down opposition to “protecting women by keeping men dressed as women out of women’s restrooms”, the numbers were still 68.4% saying “yes” and only 24% saying “no”.
Nessel is convinced that there is no legislative path forward in the foreseeable future for this. “I appreciate Representative Irwin’s rosy and optimistic outlook that hopefully in the future something might happen,” she told the audience. “But the more State Representatives and the more State Senators that I spoke to, the more convinced that I became that there really is no legislative strategy. Not just this year and not just next year but for many, many years to come.” According to Nessel, nothing will get through the Senate until 2022 at the earliest. She also pointed out that the DeBoer case was litigated for four and half years before last summer’s Supreme Court decision. This is proof, she said, that a judicial path forward is also a dead end.
If Fair Michigan is successful, Nessel pointed out, we will be the first state in the country to do this. “Even Californians will be jealous!” she said, smiling.
Professor Sedler said that a constitutional approach has many advantages. “The constitution only runs against the government,” he said. “Never against the people.”
“[The ballot proposal] accomplishes two things,” he said. “First, it gives constitutional protection under the state constitution in the state courts for LGBT people. Secondly, it gives a remedy for private discrimination. I want to emphasize that again and again and again that you can’t use litigation to challenge private discrimination. You need legislation making it illegal.” However, in Prof. Sedler’s opinion, “Any attempt to do it in the state legislature would get a religious exemption.”
With regard to the financial aspect of this effort, Nessel told the audience that she thinks they can be successful spending just $10-12 million. She also took a swipe at LGBTQ activists from groups that are not supporting Fair Michigan’s effort. “I want to get away from the feeling that just because you are not a paid activist does not mean that your opinion does not count,” she said, apparently in reference to leaders and staffers from the various LGBTQ advocacy groups who are opposing the ballot drive. “We are all members of society and, for those of us who are LGBT as I am, we are all members of this community. So everyone should have an equal say no matter who you are.”
Amy Hunter pushed back on Nessel’s belief that this can be done for only $10-12 million. She pointed out that in Houston, a city that has elected an out lesbian as their mayor not once but three times, the pro-LGBTQ coalition massively outspent their opposition and still came up short. She then asked data analyst Amy Mello to discuss the work her group has done with modeling. Mello’s remarks came as a bombshell and when she revealed the numbers their model predicts, there was an audible gasp in the room. Here are her remarks in full:
I’m a data person and one of the things that came out of Houston was a metric that I think we should being paying attention to and that a lot of state groups in different states are looking for analysis on. And that is that there is a model for this. A model is like a poll but far more vigorous in the sense that you all have a file on you every time you swipe your card at the grocery store, every time you subscribe to a magazine. There’s a lot of data connected to every individual voter. A model is something where people take a very broad poll and then consider all of these factors in something called dial testing which is where we hear opponent messaging but the voters are asked to actually watch the ads because of the visceral nature of seeing that.
There was a model done and analyzed here in Michigan. This model predicted Houston’s result within two points. It predicted, every day as the new poll numbers were coming in, what the change in demographics would be within two points.
Here in Michigan, the analysis right now, looks like support, particularly in the 2016 electorate, is about 42% of the ballot. That’s a prediction. It’s based on a turnout model which is something that political scientists use a lot where they look at voter history and they give everyone a score on their support on the issue and they give everyone a score on their likelihood of turnout. When you cross those scores, you get a prediction.
We have found that polling is often higher support because the issue, in general, feels like something that people would support. And we have also found that, when I ask voters at the door – and I’ve knocked on thousands of doors on this – they often, even if I bring up the bathroom issue, they may not engage on it. There are a lot of factors that go into decisions like this but I think it’s important that we recognize that there are other numbers out there and that this one would show a gap of about 730,000 votes meaning we’d need to change 365,000 minds. That is a pretty gargantuan feat that at least should be something that we’re considering, these other statistics, as we move forward.
Given her expertise and knowledge of polling and modeling, the forum would have been dramatically improved by having Mello on the panel. Unfortunately, I’m told that Dana Nessel vetoed her as a panelist.
Professor Sedler framed the conversation in this way: “The dilemma seems to be, well, either you do nothing and let the discrimination continue or you try to wait until a better time and I think that is part of what has been suggested. I don’t think there is a better time than 2016.” This comment created a stir in the audience with someone shouting out, “Nobody is saying ‘do nothing!’
Amy Hunter responded saying, “I would object very strenuously to the concept of ‘do nothing’. Regardless of what path is ultimately seems to make the most sense, we have been and will continue to work on legislative options and will continue to till that ground.”
“Marriage equality didn’t happen in a vacuum,” Hunter reminded the audience. “We didn’t just decide to take a marriage equality case to court and lose in the 6th Circuit Court that opened the door for a Supreme Court ruling. There was forty years of activism and learning and failing and trying and failing and moving forward and learning to create a cultural moment that made that ruling possible. We have not done that around the transgender community yet. We are now the new ‘wedge issue’.”
The good news, she said is that she’s “never seen the trans community as cohesive as it is right now” and that the fact that the LGBTQ community stood firm when Republicans tried to strip gender orientation from the 2014 effort to revise the ELCRA proves that the community, as a whole, is united.
The event concluded with remarks by former Congressman and gubernatorial candidate Mark Schauer. He talked about the importance of unity on this issue. He suggested that a “subset” of the folks in the room convene in the next 7-10 days to discuss the path forward. This, he said, should be done in private and then, once decisions and agreements had been reached, that another public forum would occur, perhaps in January, to bring the community back into the discussion. Schauer offered his services as a private citizen to facilitate that.
I came away from the discussion much more knowledgeable than when I went in. My sense is that few minds were changed, however. I, myself, have been concerned that small group within the LGBTQ community is making a monumental choice on strategy that, by definition, forces people to take one side or the other. And they have done this without having first laid the groundwork to both educate the voting public and also to build the necessary coalitions within the LGBTQ community to make that happen. It is, in a very real sense, a bully’s approach. Dana Nessel and the entire Fair Michigan coalition are forcing the LGBTQ community to either side with them or be put in the position of having to oppose (or at least not participate in) an effort to expand their civil rights, something everyone in the room wants to happen.
Another thing that struck me was how uncomfortable the proponents on the panel seem to be when it comes to discussing gender identity. For example, I heard several references “transgendered” people, phrasing that implies that being transgender is something that happens to you rather than who and what you are. The same people who are putting the trans community at the tip of the spear when it comes to the negative and sometimes violent repercussions of their approach are themselves awkward and even inappropriate when it comes to talking about gender identity issues. It shows just how far we still have to go when it comes to educating voters about gender identity and gender expression.
I also was gobsmacked by the amount of fairy tale thinking going on among Fair Michigan supporters. While those who are advocating for a different approach are using data analysis and objective measures to formulate their positions and strategy, Fair Michigan proponents point to their polling numbers which are notoriously inaccurate and use phrases like, “we feel very confident” and “they feel very confident” and “I feel very confident” when talking about the merits of their proposal. For example, when talking about getting out in front of the “men dressed as women in women’s bathrooms” argument that has been used with wicked success in other places, Prof. Sedler said, “I have confidence in the message that we will do. I think we’ve given an easy answer to the bathroom issue.” This is, of course, absurd. You don’t need to convince the LGBTQ community that the bathroom argument is fallacious. You have to convince the voters and that has proven across the country to be a formidable task, indeed.
The strongest argument I heard from supporters of the ballot proposal is that we need an initiative like this to force the conversation to happen. As Dana Nessel put it, this ballot drive is a “great opportunity for dialog” and education. She is right and it’s a compelling argument. However, the question is whether it can be done in the time frame Nessel and her group have put us on. Can you change the minds of 365,000 Michiganders in less than one year? These are people who don’t already support this issue as shown by a model that predicted the outcome in Houston within two points (a margin that is startlingly and unusually accurate.) I, like many others, don’t believe that is possible.
I reject the idea that this is simply a matter of the LGBTQ community “coming together”. The fact is that Fair Michigan has put the LGBTQ community on a single path forward. Nessel told MLive, “We are full steam ahead. I won’t talk to anybody about stopping” the effort. She has refused to provide an op-ed for the news outlet Between the Lines. She has refused an interview with Eclectablog when I wasn’t 100% supportive. She has rebuffed the trans community. In fact, she promoted the forum to be a “debate” between her and Stephanie White, something that was never agreed to. Her actions so far are causing rifts in the Board of the Jim Toy Center and beyond. Simply put, this approach is a bully’s “My way or the highway” approach that is fracturing a community that has worked together very well in recent battles. It’s distressing in the extreme.
In an environment like this, “coming together” actually means, “doing what Fair Michigan wants”. Because they have not done the coalition-building so necessary for such an undertaking, they have alienated some who will sit on the sidelines and turned the others into reluctant supporters who feel it’s the wrong approach but who will work for it because the goal is one all of us agree on. Building a team of reluctant, resentful supporters is a terrible strategy for winning on such a difficult issue as this and that currently has the support of only 42% of Michigan voters.
Finally, it appears that some supporters of Fair Michigan are already setting up scapegoats to blame if the effort does, in fact, fail. Jack Lessenberry recently penned a piece titled, “The ACLU is unwilling to do anything meaningful to help push for LGBT civil rights“, an essay that Fair Michigan proponents have been promoting on social media. This reprehensible attack piece suggests that a group that has long been on the forefront of promoting LGBTQ issues and causes is somehow the bad guy here because they are unwilling to be bullied by people with whom they disagree. I highly recommend reading ACLU Executive Director Katy Moss’s vigorous response to Lessenberry’s piece HERE in which she says, “The ACLU will not be scapegoated because proponents of a ballot initiative fail to garner the necessary support to win.”
I fully realize that my position on this will upset some in the LGBTQ community. However, it’s a position that I was forced into, not one I enjoy taking. As with those who will reluctantly support this ballot drive even though we disagree with it, I’ve been put in what I feel is an untenable decision. The fact that it’s already fracturing the Michigan LGBTQ community is a huge red flag, one that should give all of us tremendous pause.
[Photo by Adam Zemke, used with permission.]