Michigan House Democrats passed two bills last week that would carve out exclusive protections against so-called “hate crimes” for individuals based on certain categories like sexual orientation, gender identity, and religion, among others. Lawmakers voted to pass such provisions despite current laws already in place to protect citizens from threats, harm, and intimidation.

Democrats in the state House passed HB 5400 and HB 5401 last week. The first bill would, according to a legislative analysis of the bills, “amend the Michigan Penal Code to revise its hate crime provisions,” in part by adding sexual orientation and “gender identity or expression,” among other things, to its list of protected attributes. The second bill would “amend the sentencing guidelines … to include the new felonies proposed by HB 5400.”

HB 5400, as passed by the house, removes the qualifier of “physical contact” from its description of possible hate crimes, replacing it with the use of “force or violence against another individual” because of his inclusion in a protected class. Causing bodily injury, stalking, causing property damage, or threatening to do so “based in whole or in part” on one of the protected characteristics also qualifies as a hate crime under the bill. HB 5401 prescribes sentences ranging between two and 10 years in prison, depending on the supposed offense. 

Michigan law already bans physical assault and threats or intimidation across the board, and the 14th Amendment already ensures the government provides all citizens with “the equal protection of the laws.” Acts or threats of violence against individuals or groups are also not protected under the First Amendment.

Both bills are sponsored by Democrat state Reps. Noah Arbit and Kristian Grant. The bills narrowly passed the state House by 57-52, “with one Republican … joining all Democrats in approving the legislation,” as the Michigan Advance reported. Democrats have a narrow majority in the state House, controlling 56 seats to Republicans’ 54.

Republican state Sen. Jim Runestad told The Federalist the Democrat-controlled Senate will likely pass the bills in December, during its final weeks of session.

Possible Consequences

While a person prosecuted under this bill might be able to convince a court he is innocent because he was “unaware” his actions could be seen as “threatening violence,” a caveat that HB 5400 supposedly carves out, Runestad expressed concern that prosecutors could tack on these hate crime charges to other offenses, increasing one’s penalty.

“You could have a confrontation with somebody and then use the wrong pronoun, and thus get it escalated from a regular crime into a hate crime with additional penalties,” he said.

Runestad also voiced concern that, while the charges may not always hold up in court, prosecutors could still politically weaponize the charges, bankrupting the finances and reputation of the accused even if he is ultimately found innocent.

“Now what you’ve done to the other person who’s been charged or had this allegation thrown at them, you oftentimes destroy them, because the media will pick that up all day long,” he told The Federalist. “It breaks you. It destroys you. You go bankrupt.”

Republican state Rep. Matt Hall — who will serve as House speaker when Republicans gain control — suggested on X before the bills were passed that prosecutors could potentially use these bills to target people for saying there are only two sexes online.

“After losing majority, House Democrats want to ram through woke bills to allow prosecutors to go after people for stating there are only two genders on social media,” Hall wrote last week referring to the bills. “Michiganders don’t want this. This absurd, radical, out-of-touch agenda must stop.”

Arbit told The Federalist — also before the bills passed the state House last week — that they would not criminalize “misgendering.” He also said that the bills would not affect the right to free speech protected under the First Amendment and that they only apply to “violent acts.” He also indicated he sponsored the proposed legislation in response to “antisemitic violence” following the Oct. 7 terror attacks against Israel.

“Michigan has had a hate crime law for over 35 years, since 1988, on the books. So this isn’t a new law, it’s just updating it to increase the penalties and ensure more groups targeted by hate crimes are covered,” Arbit told The Federalist.

When asked about safeguards in place to prevent subjective prosecution regarding the provisions, Arbit noted how hate crime prosecutions require proof of motive, which makes the burden of proof higher. He also claimed “[p]rosecutors won’t charge a hate crime in Michigan” without “extraordinarily compelling evidence” to prove guilt.

Arbit said there are similar hate crime statutes in most states, but that “there have not been issues raised in those states of overzealous prosecution.” He claimed that “Michigan will not be different.”

But recent years have demonstrated that hate crime hoaxes can quickly become commonplace. Runestad expressed concern that these bills could enable a false sense of hysteria over alleged “hate crime.”

“These false allegations are pandemic. They are by the thousands and thousands, and virtually never is the person charged for the false allegation,” Runestad said.

Republicans won back the state House during the recent election, likely obstructing the current Democrat “trifecta” of power between Gov. Gretchen Whitmer, the state legislature, and the state supreme court.

The Federalist reached out to state Rep. Kristian Grant, the other Democrat who sponsored the bills passed by the state House, but did not receive a reply.