Proposed Amendment to Michigan Penal Code Would Classify Transgender Individuals as Protected Class

A new bill passed in the Michigan House of Representatives would amend the Michigan Penal Code to include additional penalties for hate crimes committed on the basis of gender identity or expression. The bill passed 59-50 in the House and now faces Michigan State Senate approval.

Will Misgendering Someone Be a Crime in Michigan?

The new bill would classify gender identity as a protected class in circumstances of repeated and continuous stalking and intimidation. Contrary to some media reporting on this topic, the language in the bill suggests that Misgendering would not be considered a criminal act in and of itself. Criminal consequences would only apply in circumstances where another crime has been committed.

For example, if you accidentally or intentionally use incorrect pronouns when speaking to a transgender woman, your speech is still protected by the First Amendment. It might be a socially awkward situation, but no one is going to jail.

Misgendering someone in conjunction with other threats, however, may be considered a hate crime under this proposed legislation. If you are in violation of Michigan’s stalking and intimidation law and you misgender that individual, the crime may be prosecuted more harshly with this in mind.

“Hate Crime” Defined in Proposed Amendments to Penal Code

The proposed amendments to the Michigan Penal Code define the circumstances under which an individual from a protected class may press hate crime charges. The language — which mirrors that of Michigan’s stalking law — defines a hate crime as those crimes committed based “in whole or in part on an actual or perceived characteristic of that individual,” including threats or use of force or violence, intimidation, and damage to real, personal, digital, or online property.

Under this new legislation, protected characteristics would include:

• Race or color
• Religion
• Sex
• Sexual orientation
• Gender identity or expression
• Physical or mental disability
• Age
• Ethnicity
• National origin
• Association or affiliation with an individual or group of individuals in whole or in part based on a characteristic described above

In accordance with the proposed amendment, individuals found guilty of a hate crime would face felony charges punishable by up to 5 years imprisonment and/or a fine of up to $10,000.

What Constitutes “Intimidation” in Michigan Hate Crime Bill?

The bill’s passage in the House has sparked some concern over the state of constitutionally protected free speech in Michigan. Opponents of the bill worry that transgender individuals who feel “intimidated” may press charges in the event they are misgendered. Notably, the proposed amendment includes language to dispel concerns about how these charges may be applied:

“‘Intimidate’ means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable individual to feel terrorized, frightened, or threatened, and that actually causes the victim to feel terrorized, frightened, or threatened. Intimidate does not include constitutionally protected activity or conduct that serves a legitimate purpose.” (Bill to amend 1931 PA 329)

Read the full text of the proposed amendment here.

Attorney John Freeman Will Fight to Protect Your Rights

While the fate of this bill remains to be seen (the Michigan Senate is expected to vote later this month), we must prepare for the possibility that overzealous prosecutors may attempt to infringe on people’s rights in the name of this legislation.

Our team of experienced criminal defense attorneys is committed to protecting your rights. If you believe your rights are in jeopardy, do not hesitate to contact us today.