On March 8, 2023, the Michigan House of Representatives passed a bill (S.B. 4) expanding the language of the Elliott-Larsen Civil Rights Act (ELCRA)’s protected categories to include sexual orientation and gender identity or expression as prohibited categories for discrimination.  The state senate approved S.B. 4 on March 1, so the bill now heads to the governor’s desk for her signature.

Sexual Orientation and Gender Identity or Expression Defined

The amendment 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 “means having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation.”

Practical Impact

The practical impact of the amendment remains to be seen.  In 2022, the Michigan Supreme Court held that discrimination based on sexual orientation qualifies as discrimination because of sex. Rouch World, LLC v Michigan Department of Civil Rights. More specifically, the Rouch court found that one’s sex is necessary to the identification of sexual orientation and therefore discrimination on that basis is discrimination on the basis of sex. The new amendment explicitly codifies the protection afforded by the Rouch decision but goes further to add protection for gender identity and gender expression, which were not addressed by the court’s opinion.

Given these recent developments, employers, businesses offering public accommodations, educational institutions and other organizations covered by the ELCRA should ensure that their policies, handbooks, and practices protect against discrimination based on these amended protected categories if they have not done so already, and that managers and supervisors are aware of these changes.