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PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deonton Autez ROGERS, Defendant-Appellee.
The prosecution appeals by leave granted 1 the trial court's November 7, 2018 order granting defendant Deonton Autez Rogers's motion to quash several counts of the information. Defendant was charged as a third-offense habitual offender, MCL 769.11, with intentionally discharging a firearm in a building causing physical injury, MCL 750.234b(3); intentionally discharging a firearm in a building causing serious impairment, MCL 750.234b(4); assault with a dangerous weapon, MCL 750.82; possession of a firearm during the commission of a felony, MCL 750.227b; felon in possession of a firearm, MCL 750.224f; fourth-degree child abuse, MCL 750.136b(7); and ethnic intimidation, MCL 750.147b. On defendant's motion, the trial court dismissed the charges of intentionally discharging a firearm in a building causing physical injury, intentionally discharging a firearm in a building causing serious impairment, and ethnic intimidation. On appeal, the prosecution challenges only the trial court's dismissal of the ethnic-intimidation charge. We affirm the trial court's order granting defendant's motion to quash the ethnic-intimidation charge. We do so despite the fact that the trial court's reasoning constituted legal error. As detailed in our opinion, the trial court reached the correct result, albeit for the wrong reasons.
This case arises out of an altercation between defendant and the complainant on the night of July 23, 2018. The complainant is a transgender person, which she explained to the court means that she was assigned as a male at birth but now identifies as a woman, living her life and presenting herself as such in society. On the night of the incident, the complainant went to a gas station in Detroit to make a purchase. When she arrived at the gas station, she saw defendant inside the gas station with a woman. The complainant got in line, and defendant began talking to her, using derogatory terms. According to the complainant, defendant made various offensive statements to her, including, “[Y]ou're a nigga.” The complainant responded that “nigga is somebody that identify [sic] themselves as a man, carry themselves as a man. I don't do that. I'm a transgender.” Defendant then asked the complainant about her sex organs and asked if he could see “it.” The complainant tried to ignore defendant, but he continued to make derogatory remarks, which the complainant described as “gay” in nature and included calling her a man and asking to see her penis. Defendant then pulled out a gun and threatened to kill her. The complainant was frightened that defendant would follow through on his threat to kill her. The woman with defendant told defendant to leave the complainant alone and to leave the gas station. While defendant was speaking to the complainant, a child who had arrived in the car with defendant entered the gas station. Defendant subsequently walked in close proximity to the complainant, gun in hand, moving toward the exit. The complainant testified that she feared that defendant would turn around and shoot her before leaving the gas station. The complainant further testified that transgender people are often attacked and harmed and that she feared for her life. Reacting to the threat from defendant, she grabbed at defendant's hand as he came near her in an attempt to get the gun away from him. A struggle between the two ensued, during which the complainant never had control of the gun. During this struggle, defendant kept his finger on the trigger. At some point during the struggle, the gun fired into the complainant's left shoulder. The complainant was then able to grab the gun from defendant. The woman with defendant took the gun from the complainant and moved toward the exit. Defendant then ran to the gas station exit, whereupon the woman with defendant gave him back the gun. Defendant then got into his car, and the child followed him out, climbing into defendant's car with him. The complainant was taken to the hospital, where she spent several days being treated for a shattered shoulder, including undergoing surgery.
At defendant's preliminary examination, surveillance footage was shown detailing the incident. Defendant objected to the court binding him over on the two charges of intentionally discharging a firearm, asserting that he did not intentionally fire a weapon at the complainant. With regard to the remaining charges (including the ethnic-intimidation charge), defendant conceded that there were “questions of fact for a jury[.]” Relevant to the appeal at hand, the district court ruled that “transgender” fell within the statutory definition of “gender”2 for purposes of the ethnic-intimidation charge.
In the trial court, defendant moved to quash the district court's decision to bind him over on the two charges of intentionally discharging a firearm in a building and the charge of ethnic intimidation. With respect to the ethnic-intimidation charge, defendant argued that the prosecution failed to demonstrate that defendant committed a malicious physical act accompanied by a specific intent to harass the complainant because of her gender. In his amended motion to quash, defendant further contended that the ethnic-intimidation statute does not apply to situations involving transgender people. The trial court granted defendant's motion to quash, finding that with respect to ethnic intimidation, the preliminary-examination testimony established that the complainant, not defendant, caused the physical contact between the two by grabbing defendant's wrist. The trial court further concluded that because the term “gender” is defined 3 in the Michigan Penal Code 4 as including only masculine, feminine, and neuter genders, the ethnic-intimidation statute did not apply to protect transgender people.
As previously indicated, this Court granted the prosecution's application for leave to appeal the trial court's decision.
II. STANDARD OF REVIEW
Whether a defendant's conduct falls within the scope of a criminal statute is a question of statutory interpretation, which is reviewed de novo. People v. Flick, 487 Mich. 1, 9, 790 N.W.2d 295 (2010). Additionally, “[a] district court magistrate's decision to bind over a defendant and a trial court's decision on a motion to quash an information are reviewed for an abuse of discretion.” People v. Dowdy, 489 Mich. 373, 379, 802 N.W.2d 239 (2011), see also People v. March, 499 Mich. 389, 397, 886 N.W.2d 396 (2016) (“A trial court's decision to quash an information is reviewed for an abuse of discretion.”). “An abuse of discretion occurs when a decision falls outside the range of reasonable and principled outcomes.” People v. Zitka, 325 Mich. App. 38, 43, 922 N.W.2d 696 (2018) (quotation marks and citation omitted). To the extent that a lower court bases its decision on a motion to quash an information on an interpretation of the law, our review of that interpretation is de novo. March, 499 Mich. at 397, 886 N.W.2d 396. When a trial court makes an error of law it necessarily abuses its discretion. People v. Duncan, 494 Mich. 713, 723, 835 N.W.2d 399 (2013).
Defendant was charged with ethnic intimidation under MCL 750.147b. The statute 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:
(a) Causes physical contact with another person.
(b) Damages, destroys, or defaces any real or personal property of another person.
(c) Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.
The most important goal of statutory interpretation is to discern and give effect to the intent of the Legislature. Dowdy, 489 Mich. at 379, 802 N.W.2d 239. If a statute's language is clear and unambiguous, it must be enforced as written and judicial construction is not required or permitted. People v. Gardner, 482 Mich. 41, 50, 753 N.W.2d 78 (2008).
Relevant to the instant matter, the word “gender” is not specifically defined within MCL 750.147b. The trial court opined that irrespective of whether the prosecution brought the ethnic-intimidation charge against defendant under Subdivision (a) or Subdivision (c) of that statute, the lower court made an error of law by binding defendant over on the charge “based on the wording of MCL 750.147b and the definition of ‘gender.’ ” The trial court concluded that because the word “gender” is defined in the Penal Code and that definition does not mention the term “transgender,” see MCL 750.10, referring to dictionary definitions of the word “gender” to expand the statutory definition was impermissible. We thus begin our analysis by addressing whether the word “gender” in MCL 750.147b includes transgender people. We conclude that it does not, but for reasons wholly distinct from the trial court's rationale.
On its face, MCL 750.10 provides grammatical clarity and miscellaneous definitions for the entirety of the Michigan Penal Code. It states, in relevant part, that “[t]he masculine gender includes the feminine and neuter genders.” It is readily apparent to this Court that the trial court was misguided in relying on that provision to conclude that “transgender” is not a part or subset of “gender” for purposes of the ethnic-intimidation statute. For decades, this Court has stated its understanding that the purpose of this statute was to place the female gender on the same footing as the male gender with regard to the application of criminal statutes. In People v. Gilliam, 108 Mich. App. 695, 700, 310 N.W.2d 843 (1981), for example, this Court stated that the gender provision in MCL 750.10 “indicates a clear legislative intent that the Penal Code apply to females as well as males.” In People v. Ghosh, 188 Mich. App. 545, 546-547, 470 N.W.2d 497 (1991), this Court referred to Gilliam, stating that MCL 750.10 provides that the Michigan Penal Code “applies to both men and women.” Ghosh, 188 Mich. App. at 546, 470 N.W.2d 497. Thus, we have consistently recognized that the legislative intent in enacting MCL 750.10 was simply to clarify that the Penal Code did not apply only to men, but also to women, even when only masculine pronouns are used.5 MCL 750.10 establishes only a rule of grammar intending to explain that persons of the male sex are not the only people subject to the Michigan Penal Code. We therefore conclude that the trial court erred as a matter of law by finding that the provisions of MCL 750.10 establish a substantive, strictly limited definition of “gender” to be used throughout the Penal Code.
This does not end our inquiry, however. We must still determine whether intimidation on the basis of a person's “gender” in the ethnic-intimidation statute, which was enacted in 1988, includes intimidation on the basis that a person is transgender. Normal rules of statutory construction aid us in that effort. “If a statute specifically defines a term, the statutory definition is controlling.” People v. Lewis, 302 Mich. App. 338, 342, 839 N.W.2d 37 (2013). However, when “ ‘terms are not expressly defined anywhere in the statute, they must be interpreted on the basis of their ordinary meaning and the context in which they are used.’ ” Id., quoting People v. Zajaczkowski, 493 Mich. 6, 13, 825 N.W.2d 554 (2012). Additionally, when a term is not defined in a statute, the dictionary definition of the term may be consulted or examined because this assists the goal of construing undefined terms in accordance with their ordinary and generally accepted meanings. Lewis, 302 Mich. App. at 342, 839 N.W.2d 37.
Because the word “gender” is not defined within the ethnic-intimidation statute, we may consult dictionary definitions of the word to determine what is included within its meaning. This is not, however, a simple matter of picking up a current dictionary, as the district court appears to have done in making its bindover decision, to determine the meaning of a term enacted into law in 1988. This is because our task as judges is to determine what the statute meant at the time the people adopted it, not what it might mean under an evolved understanding of the statutory language more than 30 years following its enactment. Cain v. Waste Mgt., Inc. (After Remand), 472 Mich. 236, 247, 697 N.W.2d 130 (2005) (looking to dictionary definitions from the era of the original legislation in construing the meaning of an undefined statutory term). See also People v. Wood, 326 Mich. App. 561, 571, 928 N.W.2d 267 (2018) (“The Michigan Supreme Court has recognized the importance of defining a statutory term according to its original meaning.”). That we must look to the meaning of statutory words and phrases as they would have been understood at the time of their enactment was aptly stated in In re Certified Question, 499 Mich. 477, 484-485, 885 N.W.2d 628 (2016). In discussing the action of resorting to a dictionary definition of a statutory term, our Supreme Court stated, “In this regard, it is best to consult a dictionary from the era in which the legislation was enacted․ Because the [preservation of personal privacy act, MCL 445.1711 et seq.,] was enacted in 1988, we consult dictionaries from that era to define those words.” Id. at 484-485, 885 N.W.2d 628, citing Cain, 472 Mich. at 247, 697 N.W.2d 130 (emphasis added).
To do otherwise would allow a statute's meaning to change not as a result of statutory amendment but, rather, by judicial fiat on the basis of evolving societal understandings of a statutory term or terms. This approach would be particularly problematic in the area of criminal law because it would pose serious due-process concerns. As this case well illustrates, allowing a criminal prohibition to change meaning because of nothing more than society's more “modern” or “current” understanding of a statute's terms could turn what yesterday was not criminal into something that today is criminal, without notice to the public. And likewise, that which was criminal yesterday could become legal today without any intervening change in the law. It is to avoid such anomalies that we must look to the meaning of words at the time they were enacted to determine whether certain conduct is illegal. And when we conclude that certain conduct, reprehensible as it is, is not prohibited under the law as it exists, it is up to the Legislature, not the judges of this or any other court, to specify that illegality.
In this case, we must determine whether within the ethnic-intimidation statute, intimidation on the basis of a person's “gender” encompasses intimidation motivated by the fact that a person is transgender. It is undoubtedly the case, as our dissenting colleague points out, that a current definition of the term “gender” includes gender identity, and specifically transgender identity. But the statute was not enacted in the modern era when these definitions and understandings have taken hold. Rather, the people's representatives in the Legislature enacted this statute in 1988, and it took effect on March 30, 1989. What, then, was the common understanding of the term “gender” when the Legislature criminalized ethnic intimidation?
Webster's Ninth New Collegiate Dictionary, published in 1990, gives a one-word definition of the word “gender” as follows: “SEX.” This is the only definition given of the word in noun form that bears upon sexual identity; the others relate to the grammatical meaning of the term. The Random House College Dictionary (rev. ed.), published in 1988, after likewise defining the word as a grammatical term, gives the same one-word definition: “sex.” Both dictionaries then illustrate this meaning by using the word in a phrase involving “the feminine gender.” The word “sex” was at that time, and remains today, associated with the biological roles of male and female. In that regard, Webster's Ninth New Collegiate Dictionary (1990) first defines “sex” as “either of two divisions of organisms distinguished respectively as male or female․” At the time the statute was enacted, therefore, the term “gender” was synonymous with sex, being the biological roles of male and female.6
That this was the common understanding of the term “gender” at the time the statute was enacted is further illustrated by a 1993 opinion of this Court. In Barbour v. Dep't of Social Servs., 198 Mich. App. 183, 185-86, 497 N.W.2d 216 (1993), this Court upheld the trial court's dismissal of the plaintiff's claim that he was unlawfully discriminated against in his employment on the basis of his sexual orientation. The plaintiff brought his claim under the Michigan Civil Rights Act, MCL 37.2101 et seq., which prohibits various forms of discrimination on the basis of “sex.” The Court held that “harassment or discrimination based upon a person's sexual orientation is not an activity proscribed by the act.” Barbour, 198 Mich. App. at 185, 497 N.W.2d 216. The Court went on to state, “Plaintiff has failed to meet the requirement that the harassment be gender-based.” Id. at 186, 497 N.W.2d 216 (emphasis added). The Court also relied on its review of federal caselaw interpreting Title VII of the federal Civil Rights Act, 42 USC 2000e et seq., which similarly prohibits discrimination on the basis of “sex,” concluding that Title VII's “protections are aimed at gender discrimination, not discrimination based on sexual orientation.” Barbour, 198 Mich. App. at 185, 497 N.W.2d 216 (emphasis added). As can be seen, the court in Barbour used the term “gender” interchangeably with the statutory term “sex.” This strongly suggests that gender, at least through the early 1990s, held the same meaning as sex, which has long been understood to denote whether a person is male or female.
There is simply no indication that when this statute was enacted in 1988, the term “gender” would have been understood to encompass one who is a transgender person. Indeed, in 1988, the general public may not have understood the meaning of the term “transgender,” which was then newly in use in the media.7 See The Oxford English Dictionary (2d ed.) (which was published in 1989 and contains no definition of the term “transgender”). Instead, the public would have understood the term “gender” to refer to whether a person is male or female, just as this court did in Barbour.8
A review of the legislative history of the ethnic-intimidation statute is also instructive.9 House Bill 4113, which became Public Act 371 of 1988, was introduced on February 12, 1987. 1987 HB 4133. As introduced, the bill stated that a person is guilty of ethnic intimidation if the person engages in certain conduct that is motivated “by reason of the race, color, religion, or national origin of the victim or victims.” Id. Notably, there was no mention of either gender or sexual orientation when the bill was first introduced. Before final passage of the bill in the House of Representatives, a substitute bill (H-4) was adopted that added the term “sexual orientation” to the list of prohibited motivations; the bill was approved and advanced to the Senate. 1988 HB 4133 (H-4). The House remarkably did not include either gender or sex in its list of prohibited motivations. The Senate then proceeded to adopt a substitute (S- 2) that exchanged the term “gender” for “sexual orientation,” along with other changes. 1988 HB 4113 (S-2). See also Senate Legislative Analysis, HB 4133 (December 8, 1988). This version was returned to the House, which concurred in the Senate amendments, enrolled the bill, and sent it to the Governor, who signed it into law. The statute has remained unchanged since that time.10
To conclude that the term “gender,” adopted in 1988 in place of the term “sexual orientation,” included the modern-day understanding of what it is to be a transgender person, strains credulity.11 A Legislature that in 1988 appears to have been unwilling to criminalize behavior motivated by the sexual orientation of the victim cannot reasonably be thought to have intended, instead, to criminalize conduct based on a person being transgender, a term that was not in use at that time in the jurisprudence of our state and had only recently emerged in the media. Instead, it is most certainly the case that inclusion of the term “gender” was meant, as contemporaneous dictionary definitions and court rulings strongly suggest, to criminalize certain conduct motivated by whether the victim was male or female. We are constrained to reach this conclusion because we must take this term as it was understood in 1988, not through the lens of a modern-day interpretation.12
In this case, defendant's reprehensible actions toward the complainant were motivated by the fact she is a transgender person. When defendant asserted that the complainant is a man, she responded very specifically by saying that she does not identify as a man or carry herself as a man. Instead, she told defendant, “I'm a transgender.” Defendant's conduct escalated from there, with defendant eventually pulling a weapon and threatening to shoot the complainant, which he then did during the course of a struggle over the gun. Thus, defendant's actions were not motivated by the complainant's gender, as that term was understood at the time of the statute's enactment, but instead resulted from the fact that the complainant identified herself as a transgender person. For that reason, defendant's outrageous conduct does not fall within the ambit of the ethnic-intimidation statute as it is now written. The district court erred by binding defendant over for trial on the basis of what it referred to as a “contemporary” definition of the term “gender,” by which it apparently meant contemporary with the current understanding of the term. The trial court therefore reached the correct result in quashing the bindover, albeit for the wrong reasons, and the court, therefore, did not abuse its discretion.
The partial dissent states that it “can be gleaned from the language of the statute itself” that the Legislature's intent in enacting the ethnic-intimidation statute was “to criminalize harassing and intimidating behavior when the behavior is based on a complainant's specific characteristics.” As the partial dissent then notes, the statute itself identifies those categories to which the statute applies, being race, color, religion, gender, or national origin. The partial dissent further states that “[o]ur role is to effectuate the intent of the Legislature,” that the intent of the Legislature would be effectuated by our “recogniz[ing] that the complainant here was targeted because of her gender,” and that our recognition of this would have “an important role in effectuating the Legislature's intent—to criminalize and punish hate-based or discriminatory intimidation and harassment.” (Emphasis omitted.) On this latter point, we must disagree.
MCL 750.147b does not seek to criminalize and punish hate-based or discriminatory intimidation and harassment generally; rather, that statute seeks to criminalize and punish a person guilty of ethnic intimidation, which the statute defines as a person who “maliciously, and with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin,” engages in the conduct proscribed by the statute. Id. A person does not violate the statute simply by behaving reprehensibly or hatefully. Even when a person's reprehensible conduct is inspired by hatred or prejudice toward a particular group of people, the statute still has not been violated unless that group of people is one of the categories included in the statute by our Legislature. Therefore, to ascertain whether a person is guilty of ethnic intimidation, we must determine whether that person was motivated by another person's race, color, religion, gender, or national origin.
We agree with the partial dissent that “[o]ur role is to effectuate the intent of the Legislature․” However, the intent of the Legislature that enacted this statute cannot be effectuated by our “recogniz[ing] that the complainant here was targeted because of her gender[.]” Defendant did not assault the complainant because of her sex. Indeed, defendant did not direct his attack toward any other person present on the basis of whether they were male or female. Rather, defendant directed his attack at the complainant because she is a transgender person. The Legislature's intent was not, as the partial dissent advocates, “to criminalize and punish [all] hate-based or discriminatory intimidation and harassment.” Rather, the intent of the Legislature was to punish ethnic intimidation as set forth in the statute. Indeed, much of the criminal behavior that we observe is hate-based and intended to intimidate and harass. A person only violates the ethnic-intimidation statute, however, if his or her behavior falls within the parameters of that statute.
As the partial dissent observes, “the proper role of the judiciary is simply to apply the terms of the statute to the facts of the particular case.” Smitter v. Thornapple Twp., 494 Mich. 121, 129, 833 N.W.2d 875 (2013). More precisely, our Supreme Court in Smitter stated that “[w]hen the statutory language is unambiguous, the proper role of the judiciary is simply to apply the terms of the statute to the facts of the particular case. In addition, words used by the Legislature must be construed and understood in accordance with their common, ordinary meaning.” Id. (citation omitted; emphasis added). In so doing, we observe that our Legislature did not include the term “transgender” in the statute, quite possibly because at the time the statute was enacted the term was only just entering the public and jurisprudential lexicon. For the same reason, we cannot make the leap that by using the term “gender” our Legislature meant “transgender.” We conclude that defendant did not target the complainant because of her sex he targeted her because she is a transgender person, which is not within the statute's ambit.
By any measure of human decency, defendant's treatment of the complainant was abhorrent, and the complainant deserves the protection of the law. Our judicial role, however, does not permit us to extend that much-deserved protection to her in this case. If intimidation motivated by the fact that a person is transgender is to be criminalized, as many of us would readily agree it should be, this must be done by the work of the people's elected representatives in the Legislature, not by this panel of judges. Our judicial oath simply does not empower us to amend the criminal law in this fashion, however satisfying the result might be.
I agree that the trial court erred as a matter of law by concluding that the provisions of MCL 750.10 establish a substantive, strictly limited definition of “gender” to be used throughout the Michigan Penal Code.1 In all other respects, I dissent.
Although I disagree with the majority's conclusion that the word “gender” in MCL 750.147b does not include transgender persons,2 I need not dive deeply into an analysis of past or current definitions of “gender” to conclude that defendant's conduct falls squarely within that which is unambiguously prohibited by MCL 750.147b. While I do not disagree that dictionaries may 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. Dep't of Treasury, 186 Mich. App. 419, 424, 465 N.W.2d 349 (1990). Moreover, “[a] statute is not ambiguous merely because a term it contains is undefined․” Diallo v. LaRochelle, 310 Mich. App. 411, 418, 871 N.W.2d 724 (2015) (quotation marks and citation omitted). In this case, I do not believe that reference to a dictionary is necessary to discern the legislative intent in MCL 750.147b.3
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 certain enumerated acts.]
The primary goal of statutory construction is to determine the intent of the Legislature by reasonably considering the purpose and goal of the statute. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). 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 complainant's specific characteristics. The Legislature sought to redress crimes motivated by a person's intolerance of another's characteristics specifically listed in MCL 750.147b (race, color, religion, gender, or national origin). In this matter, the complainant was targeted specifically because she was assigned biologically male at birth. Our role is to effectuate the intent of the Legislature, and I believe that to recognize that the complainant here was targeted because of her gender, whether that which was expressed outwardly or that which defendant believed she should have outwardly expressed, has an important role in effectuating the Legislature's intent—that is, to criminalize and punish hate-based or discriminatory intimidation and harassment.
I also do not believe that the majority's reliance on Barbour v. Dep't of Social Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993), to support its holding that “gender” was commonly understood as synonymous with “sex” at the time the statute was drafted, is correct. In that case, the plaintiff was subjected to harassment in the form of efforts to get him to “engage in homosexual sex․” Id. at 184, 497 N.W.2d 216. This Court stated that the “[p]laintiff's sexual orientation constituted the subject matter of the harassment.” Id. Sexual orientation is not the same as gender,4 and there is no indication that the intimidation and harassment of the complainant in this case was based on her sexual orientation, as opposed to her gender. More importantly, while we are not bound by decisions made in other jurisdictions, I note that several United States Courts of Appeals have held that discrimination based on gender is “discrimination based on a failure to conform to stereotypical gender norms.” See, e.g., Smith v. Salem, 378 F.3d 566, 573 (CA 6, 2004) (reviewing caselaw discussing same and noting that until recently, transgender people, such as people assigned male at birth “whose outward behavior and emotional identity did not conform to socially-prescribed expectations of masculinity,” were denied protection by Title VII because discrimination on that ground fell under gender rather than sex discrimination).
In a similar vein, I do not believe it is appropriate to rely on the legislative history of MCL 750.147b to ascertain the meaning and intent of the statute. There are inherent problems in basing an interpretation on legislative history rather than relying on a plain reading of the unambiguous text. As our Supreme Court stated, “[C]onstruing an unambiguous statute by relying on legislative history at the very most ․ allows the 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 N.W.2d 78 (2008) (quotation marks, citations, and brackets omitted). The legislative history cited by the majority in this case refers to the facts that the House of Representatives added the term “sexual orientation” to the list of prohibited motivations and that the Senate thereafter adopted a substitute that eliminated the phrase “sexual orientation” and added the term “gender.” While the majority views this as an “exchange” of terms, there is no indication that the Legislature intended that “gender” be a synonym of, and thus a replacement for, “sexual orientation.” It is just as likely (more likely, in my opinion) that the Legislature viewed these as differing terms and simply determined that the inclusion of only the term “gender” better reflected the intent of the statute.
Even employing the majority's definition of “gender” as synonymous with “sex” and “the biological roles of male and female,” a plain reading of the statute would dictate that whenever a complainant's sex (i.e., “biological role of male or female”) was the impetus for the intimidating or harassing behavior, the conduct falls within the ethnic-intimidation statute. If, for example, the complainant was a man who was harassed or intimidated on the basis of his “biological role as male,” the conduct would be criminal under the statute. The same would hold true for a woman who was harassed or intimidated because of her “biological role as female.” I can see no plausible reason to determine that the ethnic-intimidation statute applies to biologically assigned males who present an outward appearance of being 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. Defendant specifically intimidated and harassed the complainant because of her biologically assigned sex. Harassment based on gender (i.e., biological sex) is equally at the root of all the scenarios, and it is the prompt for the harassing or intimidating behavior. The complainant's biologically assigned sex (gender) was thus the impetus for defendant's conduct toward her. “Courts should not abandon common sense when construing a statute,” Hmeidan v. State Farm Mut. Auto. Ins. Co., 326 Mich. App. 467, 478, 928 N.W.2d 258 (2018) (quotation marks, citation, and brackets omitted), and common sense dictates that whenever and in any circumstance in which the complainant's sex prompts harassing or intimidating behavior, that conduct falls within that which is prohibited by MCL 750.147b.
In People v. Stevens, 230 Mich. App. 502, 584 N.W.2d 369 (1998), this Court was called on to determine whether there was sufficient evidence to sustain a conviction of ethnic intimidation under MCL 750.147b. There, an incident occurred at a fast food restaurant in which the defendant threatened a woman and threw a punch at her after her child interrupted the defendant while he was placing his order. Id. at 503-504, 584 N.W.2d 369. This Court found concluded:
[T]he fact that defendant started a heated argument over a trivial matter would probably not be sufficient to allow a jury to find defendant guilty of ethnic intimidation beyond a reasonable doubt. Here, however, defendant's words provided strong evidence of a racist motive. Defendant's use of the word “nigger,” his reference to the complainant as a “black bitch,” and his remark that “you people shouldn't be allowed in here” explained his otherwise inexplicable actions. Taken in the light most favorable to the prosecution, this evidence was sufficient to allow the jury to conclude that defendant was guilty beyond a reasonable doubt. [Id. at 506, 584 N.W.2d 369]
While the issue before this Court is not one of evidence sufficiency, it is clear that the language used by defendant during the incident provides strong evidence of a motive based on gender (or sex, again using the majority's chosen definition). The complainant informed defendant that she was a transgender person. Defendant asked the complainant about her sex organs and asked if he could see “it.” He continued to make derogatory remarks, called her a man, and asked to see her penis, after which he threatened to kill her. This conduct and these words cannot be seen as motivated by and centered on anything but the sex (gender) of the complainant. Just as a person's religion may not be outwardly apparent but may be sometimes gleaned from his or her words or chosen manner of dress and, thus, motivate intimidation or harassment, so too can a person's gender. And it is the harassment or intimidation that follows the recognition of and apparent disagreement with another's religion or gender (among other things) that is criminalized under MCL 750.147b.
Finally, the role of the judiciary is, indeed, to interpret the law. “[T]he proper role of the judiciary is simply to apply the terms of the statute to the facts of the particular case.” Smitter v. Thornapple Twp., 494 Mich. 121, 129, 833 N.W.2d 875 (2013). In this case, applying the term “gender” in any sense, whether it is interpreted as equating with “sex” or has a broader meaning, defendant engaged in harassment and intimidation of the complainant because of her gender. It is only when one wanders beyond the specific language in the statute that the opposite result can be reached. Very simply put, would this incident have occurred had the complainant not been biologically assigned male? Undoubtedly not. I would thus conclude that the district court did not abuse its discretion by binding defendant over on the ethnic-intimidation charge. Accordingly, I would conclude that the trial court erred by determining otherwise and by granting defendant's motion to quash that charge.
1. People v. Rogers, unpublished order of the Court of Appeals, entered November 16, 2018 (Docket No. 346348).
2. In a written opinion following the bindover, the district court stated the following:Upon reviewing the ordinary, contemporary, and common meaning of “gender,” the Court must conclude that a transgender person who is targeted based on their behavioral and social displays of gender, and the fact that the term gender encompasses the denotation of a range of identities, that a transgender person is protected under the Ethnic Intimidation Statute in Michigan.[The complainant] was made fearful by the defendant's bias related words and conduct. Defendant's assaultive actions were the result of his malicious intent to harass and intimidate. The defendant articulated bias against the victims’ [sic] behavioral and social display of gender. Therefore, the defendant is bound over on Count 7, Ethnic Intimidation.
3. See MCL 750.10.
4. MCL 750.1 et seq.
5. This Court notes that MCL 750.10 also broadens the scope of other terms, stating, for example, “The singular number includes the plural and the plural includes the singular” and “The words ‘person’, ‘accused’, and similar words include, unless a contrary intention appears, public and private corporations, copartnerships, and unincorporated or voluntary associations.”
6. The partial dissent quotes an incomplete definition of the word “gender” from The Random House Dictionary of the English Language (1971). A review of that entire definition, however, indicates that the statement is part of a discussion of the use of the word “gender” in a grammatical context, while the next definition in the entry describes gender simply as “sex.” That dictionary entry more completely states: “1. Gram. a. (in many languages) a set of classes that together include all nouns, membership in a particular class being shown by the form of the noun itself or by the form or choice of words that modify, replace, or otherwise refer to the noun, as, in English, the choice of he to replace the man, of she to replace the woman, of it to replace the table, of it or she to replace the ship. The number of genders in different languages varies from two to more than twenty; often the classification correlates in part with sex or animateness. The most familiar sets of genders are of three classes (as masculine, feminine, and neuter in Latin and German) or of two (as common and neuter in Dutch, or masculine and feminine in French and Spanish). b. one class of such a set. c. such classes or sets collectively or in general. d. membership of a word or grammatical form, or an inflectional form showing membership, in such a class. 2. sex: She always minced her words when referring to persons of the feminine gender. 3. Archaic. kind, sort, or class.”
7. This is in contrast to the terms “transsexual,” which would then have been understood to mean someone who had a psychological urge to belong to the opposite sex and may have physically transitioned from one sex to the other, and “transvestite,” which was then understood to mean a person who adopts the dress and behavior of a person of the opposite sex. Webster's Ninth New Collegiate Dictionary (1990) (quotation marks omitted).
8. The term “transgender” did not work its way into an opinion of this Court until 2008. See People v. Lee, unpublished per curiam opinion of the Court of Appeals, issued September 16, 2008 (Docket Nos. 277551 and 27552), pp. 10-11, 2008 WL 4276473. The term first appeared in a published decision of this court in 2015. See Shirvell v. Dept. of Attorney General, 308 Mich. App. 702, 745, 866 N.W.2d 478 (2015).
9. We do not resort to legislative history when the meaning of a statute is clear on its face. In re Certified Question, 468 Mich. 109, 115 n. 5, 659 N.W.2d 597 (2003). In this case, uncertainty over whether the statute prohibits intimidation on the basis that a person is transgender, derived from competing definitions of the term “gender,” warrants a resort to legislative history. “This Court has recognized the benefit of using legislative history when a statute is ambiguous and construction of an ambiguous provision becomes necessary.” Id.
10. When attempting to ascertain legislative intent, not all legislative history is equally valuable. In re Certified Question, 468 Mich. at 115 n. 5, 659 N.W.2d 597; In re Reliability Plans of Electric Utilities, 325 Mich. App. 207, 229, 926 N.W.2d 584 (2018), rev'd on other grounds 505 Mich. 97 (2020).Our Supreme Court has instructed that “the highest quality [of] legislative history [is] that [which] relates to an action of the Legislature from which a court may draw reasonable inferences about the Legislature's intent with respect to an ambiguous statutory provision,” including “actions of the Legislature in considering various alternatives in language in statutory provisions before settling on the language actually enacted.” In re Certified Question, 468 Mich. at 115 n. 5, 659 N.W.2d 597. This is the only form of legislative history we have relied on in crafting our decision in this case.
11. In 2009, Congress enacted comparable hate-crimes-prevention legislation, specifically prohibiting bodily injury or attempted bodily injury to any person because of actual or perceived “religion, national origin, gender, sexual orientation, gender identity, or disability,” 18 USC 249(a)(2)(A) (emphasis added), suggesting that Congress, at the time that statutory provision was enacted, did not consider the term “gender” to include sexual orientation or gender identity.
12. Not only have the Michigan Supreme Court and this Court made clear our obligation in this regard, see In re Certified Question, 499 Mich. at 484-485, 885 N.W.2d 628, but the United States Supreme Court has repeatedly engaged in statutory interpretation by resort to dictionary definitions at the time of a statute's enactment, see, e.g., Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 566-568, 132 S. Ct. 1997, 182 L. Ed. 2d 903 (2012) (consulting dictionaries in use in 1978, the year of enactment of the Court Interpreters Act, to ascertain the meaning of “interpreter”). See also, e.g., Smiley v. Citibank (South Dakota), N A, 517 U.S. 735, 116 S. Ct. 1730, 135 L. Ed. 2d 25 (1996) (consulting “dictionaries of the era” of the National Bank Act to interpret the term “interest”).
1. MCL 750.1 et seq.
2. “Transgender” is an adjective, not a noun. See, e.g., Merriam-Webster's Collegiate Dictionary (11th ed.).
3. I do, however, note that the 1971 edition of The Random House Dictionary of the English Language, in defining “gender,” states, “The number of genders in different languages varies from two to more than twenty; often the classification correlates, in part, with sex or animateness.” (Emphasis added.) In my opinion, when the Legislature does not designate a particular dictionary that it referred to in crafting a particular statute, it cannot be said that one dictionary is the best, let alone conclusive, determiner of legislative intent.
4. “Sexual orientation” generally refers to one's preference in sexual partners. See, e.g., Random House Webster's College Dictionary (1996).
Redford, J., concurred with Gadola, P.J.
Response sent, thank you
Docket No: No. 346348
Decided: January 07, 2020
Court: Court of Appeals of Michigan.
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