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Michigan Family Forum strongly urges the Michigan Civil Rights Commission (“Commission”) to
decline to issue an interpretive statement that includes “gender identity” and “sexual orientation” in
the prohibition on sex discrimination in the Elliott-Larsen Civil Rights Act. Such a determination would
be a significant departure from existing public policy, and it should be left up to the Legislature, or to
the people, to establish that new public policy.

The Michigan Constitution appropriately places the Commission in Article V, as a body within the
executive branch. It is widely understood that the executive branch, at all levels of government, is
responsible for executing the laws created by the legislative branch or by the people. It is not charged
with creating law. The Commission would essentially be creating law by issuing a definition
heretofore unrecognized.

Even the proponents “recognize that a statutory amendment will remain necessary, even if the
Commission issues the interpretive statement.” Nonetheless, proponents argue, “the issuance of an
interpretive statement…would provide LGBT Michiganders with access to the Commission’s
administrative remedies when they face discrimination.” In other words, the Commission’s actions
would have the force of law to do what the legislature has declined to do.

The legislature’s inaction is not a mere oversight. Even the advocates recognize that the measure
being requested was first introduced over three decades ago. Legislation was introduced in both the
House and the Senate again this session, allowing either body to discuss and to vote on the measure
at any time. Like all previous versions introduced, the current bills retain the word “sex” and add the
phrases “sexual orientation” and “gender identity or expression” as separate protected
classifications. The intent is clear, the word “sex” in current law does not include “sexual orientation”
or “gender identity or expression” and it would not be understood to include those classifications
under the proposed laws. It is not the role of the Civil Rights Commission to go where the legislature
has chosen not to go.

Existing law reinforces the clear understanding that the word “sex” does not include the proposed
interpretations, particularly in the case of the phrase “sexual orientation.” The phrase “sexual
orientation” appears three times in Michigan law. In all three instances, the word “sex” or “gender”
also appears as a separate and distinct classification from that of “sexual orientation.” Elsewhere,
existing law interchangeably uses the words “sex” and “gender” in a way that clearly denotes the
biological sexes and could not reasonably be interpreted to include sexual orientation or gender
identity without the legislature explicitly redefining those terms.

Most importantly, the Elliott-Larsen Civil Rights Act clearly uses the terms “gender”, “1 sex” and
“both sexes” in a way that clearly means biological sex and not “sexual orientation” or “gender
identity.” Again, it would be wrong for the Commission to impose on the legislature’s words a
meaning which was never intended. To do so is to co-opt the role of the legislature.

The bulk of Equality Michigan’s argument to issue an interpretive statement relies on the use of
federal law and court decisions. According to Equality Michigan, “the significant body of existing
federal precedent can and should be used to interpret Michigan law…” We do not agree with this
position and believe that such recommended action entirely undermines Equality Michigan’s
assertion that “The issuance of an interpretive statement is not a substitute for legislative action.” If
the Commission does use “federal precedent…to interpret Michigan law”, there is no need for a
statute. In fact, such an approach by the executive branch would render the legislative branch, and
the concept of federalism for that matter, largely meaningless.

Changes in public policy come slowly, but they must have the support of the citizenry in order to
enjoy respect and legitimacy. Our system allows the citizenry to make those changes either through
their elected representatives or directly through the ballot process. Implementing new public policy
by circumventing the voting process, whether through a government agency or by a robed judge,
seldom has satisfying results. We urge the Michigan Civil Rights Commission to exercise restraint and
allow the proposed changes to occur through the established democratic process.

Respectfully Submitted,
Dan Jarvis

To see how much trouble Michigan teens are in, just look at the numbers. The Michigan Department of Community Health estimates that minors accounted for 7,963 pregnancies in 1999, with 37 percent resulting in abortions or miscarriages. Of those minors giving birth, only 40 percent reported the father’s age. In 1999, among girls aged 10-14, 54 percent said the father was at least three years older, while 31 percent of those girls aged 15-16 said the father was over 20.

Sexually transmitted diseases are also plaguing our young people. In 1998-99, there were 1,461 new cases of gonorrhea and chlamydia reported among children 10-14 years of age. Teenagers are also one of the fastest growing populations contracting HIV. Health experts believe that most of these children, 90 percent of whom are girls, were infected by older men who engage in sexual intercourse with multiple partners and then transmit the disease to the children.

The impact of disease and pregnancy can be devastating and long-lasting. Many of the diseases are incurable and even deadly; all are costly to treat. Pregnancy can be equally devastating to the teen and the baby. Teen parents are more likely to drop out of school and end up on public assistance. Babies of teenagers suffer as well. As opposed to children from two-parent families, children born to single, teenage mothers suffer physical, economic, and educational deficits that they often never overcome.

Given the high incidence of predatory sex (more familiarly known as statutory rape), one wonders whether the efforts of teaching refusal skills will help. Saying “no” to predators who are older, more manipulative and able to provide financial benefits, is harder than saying “no” to a peer. Obviously, much sexual activity occurs between peers, and refusal skills can help in those situations. Still, if our society hopes to curb teen sex, it is time to enhance our arsenal of weapons.

Law Gives Little Protection

Increasingly, policymakers may look to the law to answer the predatory sex problem. The federal welfare reform of 1996 requires states to address the issue of statutory rape in order to reduce teen pregnancy. Unfortunately, Michigan has done little to comply with the law to this point.

Rep. Doug Hart, R-Rockford, introduced legislation in 1999 that said it is reasonable cause to suspect child abuse and neglect have occurred if a child under the age of 16 is pregnant or has a venereal disease. While that legislation passed the state House, the Senate failed to address the issue. Hart indicated he may reintroduce the measure.

In 1997, Sen. Joanne Emmons, R-Big Rapids, had attempted a more aggressive strategy. Emmons introduced legislation that would have raised the age of consent for sexual intercourse to 18. Her legislation also provided enhanced penalties if the perpetrator was more than three years older than the minor victim. Michigan’s current age of consent for sexual intercourse is 16, a younger age than that which is required by law for marriage and for less dangerous activities.

Age of Consent and Rape

Laws which prohibit certain activities until a set age, such as consent laws, are put in place to protect a minor from being forced to make a potentially dangerous or burdensome decision. Essentially the law is saying, “You don’t even need to decide whether or not this is right for you because you are not old enough to make this decision or to deal adequately with the potential consequences.”

Consider this: Michigan law prohibits minors under 18 from voting, being bound by contracts, purchasing lottery tickets, selling goods to pawnbrokers or donating blood (17), yet sets the age for consent to sexual intercourse at 16. Oddly enough, minors cannot purchase pornographic material, but we allow them to consent to those very same activities which are depicted. If their sexual activity results in a pregnancy they intend to abort, we require them to get parental consent.

In one strange twist of events, a Port Huron man was arrested for illegal sexual activity with several 16 and 17 year olds. His arrest was not for engaging in sexual intercourse, which he did, but because he took pictures. It is illegal to photograph a person under 18 engaging in sexual activity. In all, 21 states have an age of consent higher than 16.

Greater Protection

Given the emotional, social and physical consequences of sexual intercourse, we must intercede to protect our young people. Tying the age of consent to the age of marriage will put sexual intercourse in its proper context rather than establishing an arbitrary age, as if marriage and sexual relations are unrelated. It will also allow adolescents to reach a point of maturity where they are better able to handle the consequences of sexual relationships.

It is time for our statutory rape laws to evolve again. Our youth and our culture will be healthier financially, socially, emotionally and physically when we protect our children and put sexual activity in its proper context.

Dan Jarvis is the research and policy director at Michigan Family Forum.