On March 16, 2023, Governor Whitmer signed legislation amending the Elliott-Larsen Civil Rights Act of 1976 (“ELCRA”) to extend protection based on sexual orientation, gender identity and expression. The amended legislation makes it illegal to discriminate on these grounds in employment, public accommodations, public services, housing, and education.
In July 2022, the Michigan Supreme Court issued a majority opinion in Rouch World, LLC v. Michigan Department of Civil Rights holding that, under the ELCRA, discrimination based on sexual orientation qualifies as discrimination “because of ... sex” and is therefore prohibited. The recent amendments not only codify the Rouch World opinion but extend beyond it by adding gender identity and expression as new protected classes.
The ELCRA now defines “gender identity or expression” 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.” “Sexual orientation” is defined as “having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation.”
Several faith-based groups – including the Michigan Catholic Conference and the Council on American-Islamic Relations – have expressed concerns about how the statute may impact the rights of religious organizations, and it appears likely that legal challenges may follow.
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