Elliott-Larsen Civil Rights Act Expanded to Include Sexual Orientation and Gender Identity or Expression as Protected Class Categories

Steve Tomkowiak • Mar 18, 2023

Expanded Protections in the Areas of Housing, Employment, Public Accommodations, and Education

For decades, the Michigan Elliot-Larsen Civil Rights Act (ELCRA) prohibited discrimination in employment, housing, public accommodations, and education based on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. The Michigan Persons With Disabilities Civil Rights Act provides separate protection for persons with disabilities.

Questions have arisen in recent years regarding the application of civil rights laws to discrimination claims involving sexual orientation and gender identity. In Michigan, the Michigan Civil Rights Commission, in May 2018, issued Interpretative Statement 2018-1 declaring that discrimination based on sexual orientation and gender identity falls under the definition of "discrimination because of . . . sex" under the ELCRA. On July 20, 2018, the Michigan Attorney General, however, issued Opinion No. 7305 declaring that the Commission’s interpretative statement was invalid because it conflicted with the intent of the Legislature as expressed in the language of the ELCRA and as interpreted by courts in Michigan.

Thereafter, the U.S. Supreme Court and the Michigan Supreme Court issued decisions contrary to the Michigan Attorney General’s opinion. In June 2020, the U.S. Supreme Court in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020), held that the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination based on “sex”, encompasses discrimination on grounds of “sexual orientation” and “gender identity”. Two years later, in July 2022, the Michigan Supreme Court in Rouch World, LLC v. Department of Civil Rights, No. 162482 (July 28, 2022), consistent with Bostock’s interpretation of Title VII, held that “the prohibition of discrimination ‘because of . . . sex” in the ELCRA “encompasses discrimination on the basis of sexual orientation.”

On March 16, 2023, Governor Gretchen Whitmer signed into law Act 6 of the Public Acts of 2023, to amend the ELCRA to expressly prohibit discrimination on grounds of “sexual orientation” and “gender identity or expression”. The amendments apply to all articles of the ELCRA: employment (Article 2); public accommodation (Article 3); education (Article 4); and housing (Article 5). The Act defines "sexual orientation" as “having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation.” “Gender identity or expression”, in turn, is defined as “having or being perceived as having a gender-related self-identity or expression whether or not associated with an individual’s assigned sex at birth.” The Act 6 amendments to the ELCRA are effective 90 days from March 16, 2023.

Act 6 of the Michigan Public Acts of 2023 removes any question as to whether discrimination claims involving sexual orientation and gender identity (or expression) are included in the ELCRA. Act 6, however, does not contain express exemptions or guidance for religious organizations or expression. These questions were left undecided in Bostock, 140 S. Ct. 1753-54, and Rouch World, LLC, Slip Op. at 97-98 (Viviano, J., dissenting), and remain unaddressed in Act 6. Further, these questions were raised but not fully addressed by the Michigan Supreme Court in the earlier fair housing case of McCready v. Hoffius, 459 Mich. 1235; 593 N.W.2d 545 (1999), vacating and remanding, 459 Mich. 131; 586 N.W.2d 723 (1998).