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AG Nessel Applauds COA Ruling Related to Ethnic Intimidation Against Transgender Individuals

LANSING – Today, in People v Deonton Rogers, the Michigan Court of Appeals ruled that Michigan’s ethnic intimidation statute protects individuals who are targeted because of their gender, including intimidation against transgender individuals. Michigan Attorney General Dana Nessel previously filed amicus briefs in the Michigan Court of Appeals and Michigan Supreme Court supporting this outcome.

“The transgender community is at heightened risk for intimidation and bias-based crimes, and I applaud the Court for making clear that gender intimidation includes intimidation based on a person being transgender,” Nessel said. “I also want to thank Wayne County Prosecutor Kym Worthy and the Fair Michigan Justice Project for their dedication to protecting vulnerable communities from violence by pursuing this important case.”

In the case, defendant Deonton Rogers is alleged to have intimidated and threatened a transgender woman as she entered a gas station in 2018 in Detroit. Rogers allegedly prodded her with insulting remarks, showed her that he had a gun, and threatened to kill her. The victim believed Rogers to be serious and attempted to pull the gun away; the gun went off, hitting the victim in the shoulder and requiring her hospitalization.

After Rogers was bound over on an ethnic intimidation charge, among others, the circuit court quashed it. On appeal, and contrary to Nessel’s position in her arguments to the Court, the Court of Appeals initially agreed that Rogers’ conduct did not fall within the ethnic intimidation statute. Ultimately, the Michigan Supreme Court remanded the case to the Court of Appeals to reconsider its ruling. Nessel filed an amicus brief in the Michigan Supreme Court prior to that ruling.

Today, the Court of Appeals changed course, holding in part that a “plain reading of the statute would dictate that, whenever a complainant’s gender was the impetus for the intimidating or harassing behavior, the conduct falls within the ethnic-intimidation statute.”

Thus, the Court of Appeals reinstated the ethnic intimidation charge and remanded for further proceedings.

“Incidents like these are unfortunately far too common in the transgender community,” Nessel said.  “Since taking office, I have fought for all Michiganders – especially those who are often the target of hate crimes. This ruling supports that priority and reinforces our most basic and fundamental protections under the law.”

Most recently, in June, Nessel declared unconstitutional a state law requiring “sex-reassignment surgery” to change the sex designation on a birth certificate in Attorney General Opinion #7313. She also enacted a department-wide Transgender Policy that same month.

The Court of Appeals’ remand ruling issued this morning , as well as the concurring opinion are online.

LANSING – Michigan Attorney General Dana Nessel joined a multistate coalition in a comment letter urging the U.S. Environmental Protection Agency (EPA) to swiftly repeal or significantly revise a Trump-era rule curtailing state authority under Section 401 of the Clean Water Act. The changes to the rules made in 2020 have created uncertainty and confusion, complicating and delaying urgently needed action.

“Not only is this rule illegal, but it is harmful to our natural resources,” Nessel said. “Protecting Michigan’s water resources is crucial to the well-being of our residents and our environment. I urge the EPA to act quickly to repeal these misguided rule amendments.”

The Clean Water Act reflects Congress’ policy to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders in partnership with the federal government. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements.

The 2020 revisions to the EPA’s Section 401 certification rule have significantly impacted the issuance of nationwide permits. Pursuant to the 2020 rule changes, the Army Corps of Engineers issued several decisions suddenly excluding states’ long used water quality certification conditions. The Army Corps also determined that states had waived their authority to certify certain nationwide permits. As a result, many states are forced to evaluate projects covered by nationwide permits individually, issue state certifications on a project-by-project basis, and adopt individual water quality certifications for dischargers at significant cost to the states and their taxpayers.

In the comment letter responding to the EPA’s notice of intention to reconsider and revise the rule, the coalition argues that the EPA must repeal the Trump-era revisions to the Section 401 certification rule and restore states’ broad authority to approve, impose conditions on, or deny Section 401 certifications for federally permitted projects, as expressly recognized by the Clean Water Act.

In 2019, Nessel was part of a coalition that opposed these rule changes when they were first proposed, and in July of last year, Nessel and the coalition of states filed a lawsuit challenging the EPA’s final rule.

Joining Attorney General Nessel in sending this letter are the attorneys general of California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Pennsylvania, Virginia, and the District of Columbia.

A copy of the comment letter can be found here.