If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
August 5, 2021
Plaintiff-Appellant,
v No. 346348
Wayne County Circuit Court
DEONTON AUTEZ ROGERS, LC No. 18-006351-01-FH
Defendant-Appellee.
Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.
SERVITTO, J. (concurring).
I agree with the result reached by the majority. I write separately, however, to address
several issues I believe require attention.
First, I completely agree with the majority that the trial court erred in relying upon the
Penal Code, at MCL 750.10, to define the word “gender” given the purpose of MCL 750.10. I
additionally note that in relying on that provision, the trial court found it persuasive that there were
two bills pending before the Legislature that would add the terms “gender identification” and
“sexual orientation” to MCL 750.147b: 2017 HB 4800 and 2017 SB 0121. However, the
Legislature does not necessarily intend to change the meaning of a statute merely by amending the
statute’s language; an amendment could merely reflect the Legislature’s desire to clarify its intent.
See Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009) (“[A] change in statutory
language is presumed to reflect either a legislative change in the meaning of the statute itself or a
desire to clarify the correct interpretation of the original statute.” (emphasis added)). In addition,
construing an unambiguous statute by relying on legislative history or potential amendment allows
a reader, with equal plausibility, to pose a conclusion of his own that differs from that of the
majority. People v Gardner, 482 Mich 41, 57; 753 NW2d 78 (2008). Finally, in Bostock v Clayton
Co, Georgia, __ US __; 140 S Ct 1731, 1747; 207 L Ed 2d 218 (2020), the Supreme Court
specifically rejected postenactment legislative history as a basis for interpreting a statute.
“[S]peculation about why a later Congress declined to adopt new legislation offers a ‘particularly
dangerous’ basis on which to rest an interpretation of an existing law a different and earlier
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Congress did adopt.” Thus, the trial court’s additionally stated reason for finding that the ethnic
intimidation statute did not apply to transgender people is without basis.
Next, I disagree with the majority’s reliance upon a 1988 dictionary definition of “gender”
in its analysis. Because the ethnic intimidation statute, MCL 750.147b, was enacted in 1988 and
contains no definition of the term “gender”, the majority relies upon a dictionary definition of
“gender” from that year. According to the majority, MCL 750.147b was not enacted in an era of
a contemporary understanding of that term. Rather, the majority posits, the definition of “gender”
was understood in 1988 to be synonymous with “sex,” which, in turn, referenced only the
biological roles of male and female.
While I do not disagree that dictionaries may sometimes be used as an aid in interpreting
statutory terms, “recourse to the dictionary is unnecessary when the legislative intent may be
readily discerned from reading the statute itself.” ADVO-Sys, Inc v Dept of Treasury, 186 Mich
App 419, 424; 465 NW2d 349 (1990). Moreover, “[a] statute is not ambiguous merely because a
term it contains is undefined.” Diallo v LaRochelle, 310 Mich App 411, 417–18; 871 NW2d 724
(2015). Here, I do not believe that reference to a dictionary is necessary to discern the legislative
intent in MCL 750.147b.2,1 because there is nothing textually ambiguous about the use of the word
“gender” in the ethnic intimidation statute, when common sense is applied.
MCL 750.147b. provides, in pertinent part:
(1) A person is guilty of ethnic intimidation if that person maliciously, and with
specific intent to intimidate or harass another person because of that person’s race,
color, religion, gender, or national origin, does any of the following . . .
While there is no binding authority stating the exact purpose of the ethnic intimidation
statute, it can be gleaned from the language of the statute itself that it is intended to criminalize
harassing and intimidating behavior when the behavior is based on a victim’s specific
characteristics. Our role is to effectuate the intent of the Legislature, as determined from the
statutory language. Bukowski v City of Detroit, 478 Mich 268, 273; 732 NW2d 75 (2007). In
MCL 750.147b, the Legislature sought to redress crimes motivated by a person’s intolerance of
another’s specifically listed characteristics (race, color, religion, gender, or national origin) and
the victim’s gender was clearly not tolerated by defendant and, in fact, prompted his behavior.
I also do not believe that Barbour v Dep’t of Social Services, 198 Mich App 183; 497
NW2d 296 (1993), supports the majority’s position that “gender” was commonly understood as
synonymous with “sex” at the time MCL 750.147b was drafted. In that case, the plaintiff was
1
Notably, however, that the 1971 edition of The Random House Dictionary of the English
Language, in defining “gender” states, “[t]he number of different genders in different languages
varies from two to more than twenty; often the classification correlates, in part, with sex or
animateness” (emphasis added). When the Legislature does not designate a particular dictionary
that it referenced in crafting a particular statute, I do not see how it can be said that any one
dictionary is the best, let alone conclusive, determiner of legislative intent.
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subjected to harassment in efforts to get him to “engage in homosexual sex.” Id. at 184. This
Court thus stated that the “[p]laintiff’s sexual orientation constituted the subject matter of the
harassment.” Id. Sexual orientation is not the same as gender,2 and there is no indication that the
intimidation and harassment of the victim in this case was based on her sexual orientation, as
opposed to her gender.
Finally, I would find Bostock more persuasive than the majority appears to have found and,
more importantly, consistent with the result that a plain reading of the statute at issue would dictate.
Bostock concerned three different cases. Most relevant to this matter, Aimee Stephens was first
hired by her employer at a time when she presented as male, which was her assigned sex at birth.
Id. at 1738. But a few years later, after being diagnosed with gender dysphoria, clinicians
recommended that she begin living as a woman. Id. Years later, Stephens informed her employer
that, when she returned from an upcoming vacation, she planned to live and work full-time as a
woman. Id. Stephens was fired before she left for her vacation. Id. She thereafter brought suit
under Title VII, alleging discrimination on the basis of sex. The Sixth Circuit Court of Appeals
held that Title VII prohibited employers from firing an employee because he or she is transgender.
Id. The Supreme Court granted certiorari “to resolve at last the disagreement among the courts of
appeals over the scope of Title VII’s protections for homosexual and transgender persons.” Id.
The Bostock Court determined “[t]he statute’s message . . . is equally simple and
momentous: An individual’s homosexuality or transgender status is not relevant to employment
decisions.” Id. “That’s because it is impossible to discriminate against a person for being
homosexual or transgender without discriminating against that individual based on sex.” Id. The
Bostock Court specifically acknowledged that “homosexuality and transgender status are distinct
concepts from sex.” But, “discrimination based on homosexuality or transgender status
necessarily entails discrimination based on sex; the first cannot happen without the second.” Id.
at 1746-1747. As the Bostock Court noted:
. . . an employer who fires a woman, Hannah, because she is insufficiently feminine
and also fires a man, Bob, for being insufficiently masculine may treat men and
women as groups more or less equally. But in both cases the employer fires an
individual in part because of sex. Instead of avoiding Title VII exposure, this
employer doubles it. [Id. at 1741.]
“As enacted, Title VII prohibits all forms of discrimination because of sex, however they may
manifest themselves or whatever other labels might attach to them.” Id. at 1747. In sum, “[f]or
an employer to discriminate against employees for being homosexual or transgender, the employer
must intentionally discriminate against individual men and women in part because of sex. That
has always been prohibited by Title VII’s plain terms—and that should be the end of the analysis.”
Id. at 1743 (quotation marks and citation omitted).
A plain reading of MCL 750.147b would similarly dictate that, whenever a victim’s gender
was the impetus for the intimidating or harassing behavior, the conduct falls within the ethnic
2
“Sexual orientation” generally refers to one’s preference in sexual partners. See, e.g., Random
House Webster’s Collegiate Dictionary (1995).
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intimidation statute and that should be the end of the analysis. Clearly, under MCL 750147b, if
the victim was a man who was harassed or intimidated in whole or in part because he was a man,
the conduct would be criminal under the statute. The same would hold true for a woman who was
harassed or intimidated in whole or in part because she was woman. There is no plausible reason
to determine that the ethnic intimidation statute applies to biologically assigned males who present
an outward appearance of male and biologically assigned females who present an outward
appearance as female but not to persons whose biologically assigned sex may be different from
the sex that their outward appearances reflect. Harassment based on gender is equally at the root
of all the scenarios and is the prompting for the harassing or intimidating behavior.
No matter how we define “gender,” our role is to effectuate the intent of the Legislature.
Applying the term “gender” in any sense, whether it is interpreted as equating with “sex” as the
trial court did and the majority does, or given a broader meaning, defendant engaged in harassment
and intimidation of the victim based on her gender. The victim was targeted specifically because
she was assigned biologically male at birth but self-identified and outwardly presented as a
different gender. The preliminary examination testimony indicates that defendant’s harassment of
the victim occurred because her manner of dress did not match defendant’s expectations of how a
man should appear or behave. As I stated in my prior dissent, and in accordance with Bostock,
discrimination based upon gender necessarily includes discrimination based upon sex as well. Just
as an employer who discriminates against an employee for being transgender necessarily
discriminates against individual men and women in part because of sex (Bostock, 140 S Ct at
1743), where a defendant engages in harassing and intimidating behavior against a transgender
person, he necessarily does so on that individual’s biologically assigned sex and thus, in part, on
his or her gender.
As enacted, MCL 750.147b prohibits intimidation and harassment because of gender,
“however [it] may manifest [itself] or whatever other labels might attach to [it].” Bostock, 140 S
Ct at 1747. A plain reading of the statute requires a finding that whenever a victim’s gender was
the impetus for the intimidating or harassing behavior, the conduct falls within the ethnic
intimidation statute. I believe that to recognize that the victim here was targeted because of her
gender, however it manifested itself, has an important role in effectuating the Legislature’s intent
in enacting MCL 750.147b — to criminalize and punish hate-based or discriminatory intimidation
and harassment.
/s/ Deborah A. Servitto
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