On March 16, 2023, Michigan Governor Gretchen Whitmer signed Public Act 6 of 2023, enacting Senate Bill 4 of the 2023-2024 legislative session and amending the Elliott-Larsen Civil Rights Act to prohibit discrimination based on sexual orientation and/or gender identify or expression.
The Elliott-Larsen Civil Rights Act (“ELCRA” or the “Act”), MCL 37.2101, et seq., prohibits discriminatory practices, policies, and customs based on certain protected categories, namely, religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. Public Act 6 of 2023 amends the Act to add sexual orientation and gender identity or expression to the list of protected categories entitled to statutory protection from discrimination. Public Act 6 is a codification of protections that have existed in Michigan since May 21, 2018, when the Michigan Civil Rights Commission adopted Interpretive Statement 2018-1 and interpreted the Act as prohibiting discrimination based on sexual orientation and gender identity through the category of sex, which was already listed as a protected category.
The Act defines the terms “sexual orientation” and “gender identity or expression. “ Section 103(k) of the Act, MCL 37.2103(k), 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.” Section 103(f) of the Act, MCL 37.2103(f), 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.”
The Act now expressly prohibits discrimination on the basis of sexual orientation and/or gender identity or expression in several areas, including employment (Section 202 of the Act, MCL 37.2202), labor organization membership (Section 204 of the Act, MCL 37.2204), accommodations of a place of public accommodations or public services (Section 302 of the Act, MCL 37.2302), educational institutions (Section 402 of the Act, MCL 37.2402), real estate transactions (Section 502 of the Act, MCL 37.2502), and the financing of real estate transactions (Section 504 of the Act, MCL 37.2504).
In the context of a place of public accommodation, Section 302(a) of the Act, MCL 37.2302(a), makes it unlawful to:
Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, or marital status.
In addition, Section 302(b) prohibits any statement, advertisement, notice, or sign that would indicate that the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of a place of public accommodation or public service will be refused based on one of the protected categories, including sexual orientation, gender identity or expression. Section 302(b) further prohibits any statement, advertisement, notice or sign that would indicate that an individual’s patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable based on one of the protected categories, including sexual orientation, gender identity or expression.
Section 501(b) of the Act, MCL 37.2501(b), defines a “real estate transaction” as “the sale, exchange, rental, or lease of real property, or an interest in real property.” With respect to the specific prohibitions related to sexual orientation, gender identity or expression in the context of real estate transactions, Section 502(1) of the Act, MCL 37.2502(1) states:
(1) A person engaging in a real estate transaction . . . shall not on the basis of . . . sexual orientation, gender identity or expression . . . of an individual or anyone residing with that individual do any of the following;
(a) Refuse to engage in a real estate transaction with a person;
(b) Discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction.
(c) Refuse to receive from a person or transmit to a person a bona fide offer to engage in a real estate transaction.
(d) Refuse to negotiate for a real estate transaction with a person.
(e) Represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is so available, or knowingly fail to bring a property listing to a person’s attention, or refuse to permit a person to inspect real property, or otherwise make unavailable or deny real property to a person.
(f) Make, print, circulate, post, mail, or otherwise cause to be made or published a statement, advertisement, notice, or sign, or use a form of application for a real estate transaction, or make a record of inquiry in connection with a prospective real estate transaction, which indicates, directly or indirectly, an intent to make a preference, limitation, specification, or discrimination with respect to the real estate transaction.
(g) Offer, solicit, accept, use, or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection therewith.
(h) Discriminate against a person in the brokering or appraising of real property.
As stated above, the recent amendments to the ELCRA largely codify the Michigan Civil Rights Commission’s 2018 interpretation of the ELCRA. Nonetheless, community associations in Michigan should be aware that Public Act 6 of 2023 now expressly prohibits discrimination in Michigan based on sexual orientation, gender identity or expression. The Act is enforced by private lawsuits and by the Michigan Civil Rights Commission which investigates discrimination complaints through the Michigan Department of Civil Rights. Community associations that encounter potential issues in this area should contact legal counsel to help avoid potential discrimination claims under federal and state law.
Matthew W. Heron is a Member at Hirzel Law, PLC where he concentrates his practice in real estate, community association law, condominium law, real estate litigation, and zoning and land use. Mr. Heron also has extensive experience in a variety of litigation matters, including insurance coverage, non-compete agreements, automotive supplier disputes, and breach of contract. He routinely appears in both federal and state courts throughout Michigan and has argued before the Michigan Court of Appeals and the Court of Appeals for the Sixth Circuit. He can be reached at (248) 397-6596.