The wording on a ballot proposal to amend the state’s constitution seems simple — adding the words “gender,” “gender identity,” “sex” and “sexual orientation” to bans on discrimination.
But rarely are constitutional amendments simple or easy to adopt. And the Fair Michigan proposal is already facing turmoil among activists in the lesbian, gay, bisexual and transgender (LGBT) community, even before the group begins gathering the necessary 315,654 signatures to get the issue on the November ballot.
Dana Nessel, the Detroit attorney who represented Jayne Rowse and April DeBoer, one of the couples who led to the landmark U.S. Supreme Court decision last year legalizing same-sex marriage across the nation, started the Fair Michigan group and told a group in Washtenaw County late last year that the time to build on that decision is now.
In 2014, Michigan’s Republican-controlled Legislature debated an expansion of the state’s Elliott Larsen Civil Rights Act, which bans discrimination in housing and hiring, to include the LGBT community. But the issue couldn’t even get the necessary votes to get out of a House committee. The issue has stalled at the state Capitol and is unlikely to gain any steam until at least 2018 when the House and Senate are both up for election.
“We feel very confident in our ability to move forward. We know that even though we don’t have support in the state Legislature, we have the public support,” she said. “Someone has to make certain that these rights get put into law.”
Robert Sedler, a constitutional law professor at Wayne State University, said there is no better time to put the question to voters than in 2016.
“You’re going to have a much higher turnout of people who are sympathetic to the cause,” he told the crowd at the Washtenaw Community College event. “We’re not going to get legislation through. You’re not going to get this from litigation. This is the only realistic hope now. We either do nothing now or we put our effort behind Fair Michigan.”
But activists in the LGBT community and the ACLU of Michigan, two powerful groups that have been in the trenches advocating for LGBT rights for years, are both wary of the ballot proposal.
“From Equality Michigan’s standpoint, we’ve been pretty skeptical on the viability question of the ballot campaign,” said Stephanie White, executive director of Equality Michigan, an umbrella organization that advocates for the LGBT community. “Putting peoples’ basic civil rights up for a vote is problematic, and I haven’t seen any new information that there’s a path for success in 2016.”
There are fears that a ballot proposal will turn nasty, perhaps even violent — especially after a similar campaign in Houston was wracked with incendiary rhetoric and ended up losing badly.
“When we do these types of public campaigns, the opposition is so hostile, it increases anger and hate speech, and sometimes even violence against the community,” especially against transgender people, White added.
Amy Hunter, a transgender woman, said she is passionate about the issue but feels there is so little public understanding of the transgender community that the ballot proposal needs more lead time.
“I understand the impetus and the idea that you rally a community around an issue, and a campaign is one of the best ways to do that,” she said. “That’s all well and good if we had the time to do the ground work beforehand, and it’s my well-considered opinion that we don’t. The marriage-equality ruling did not happen in a vacuum. There was 40 years of activism, of learning and failing, to create the cultural moment that made that movement possible, and we have not done that for the transgender community.”
The ACLU has been considering a ballot question on the issue for years, said Shelli Weisberg, legislative liaison for the Michigan chapter of the ACLU.
“After the failure in the Legislature’s last session, we determined we didn’t have the time and resources to be successful,” she said. “I know the community would love to have it, but they’re really skeptical. It feels like we’re really building a coalition and moving toward a more valuable community coalition, and then this comes up and seems to be tearing that apart.”
Nessel said her group’s polling shows 68% support for the ballot proposal, adding that the polling was done after the contentious Houston campaign and that the messages from that campaign — including the most volatile argument that transgender people would be using women’s bathrooms — were included in the polling.
“This is a phenomenal opportunity that we shouldn’t squander,” she said. “I really think that by locking arms together and moving forward as a group, we can make some tremendous progress.”
But Amy Mello, a field director for the New York-based Freedom to Marry organization, said a more-detailed analysis of the question showed about 42% support in Michigan for the ballot proposal.
“It shows a gap of 730,000 votes, meaning we’d have to change 365,000 minds,” she said.
Despite the divide, Fair Michigan is moving forward and is expected to have petitions in the field later this month, said Sara Wurfel, spokeswoman for the group. As for the $10 million to $20 million needed to hire a petition circulation company and mount a campaign, those fund-raising numbers won’t be available until Feb. 16.
“We have been hearing from people all across the state, asking how they can get involved,” she said. “These are all really good signs that this is the right time.
“We obviously want to make sure all people have equal rights and protections. Everyone agrees on that starting point,” she added. “The more collaboration we have, the better. We have to have people seeing where our research and information is coming from, and the conversation will continue from there.”
The ballot proposal was approved by the state Board of Canvassers late last year, and the group has 180 days to collect the signatures of valid voters. They must be turned in to the Secretary of State by July 11 to qualify for the November ballot.
Contact Kathleen Gray: 517-372-8661, email@example.com or on Twitter @michpoligal
What the Fair Michigan ballot proposal would say
A proposal to amend the state constitution of 1963 by amending Article 1, Section 2 to prohibit discrimination based on gender, gender identity, sex and sexual orientation in addition to current constitutional prohibitions on discrimination based on religion, race, color and national origin. State law prohibiting discrimination based on race and sex would be construed to also prohibit discrimination based on gender identity and sexual orientation.
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