New LGBTQ Protections Impacting Community Associations Signed Into Law

On March 16, 2023, Governor Gretchen Whitmer signed a bipartisan bill officially expanding Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), which bars discrimination in employment and housing sectors. The ELCRA now protects against discrimination based on an individual’s sexual orientation, gender identity and gender expression. “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.” The phrase “gender identity or expression” 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.” You can review the full text of the new Public Act here.

The expansion of the ELCRA, which will take effect 90 days after signing, follows a trend in federal and state Courts to block discrimination against LGBTQ individuals. The Supreme Court of the United States ruled in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), that a provision in Title VII of the Civil Rights Act of 1964 prohibiting sex discrimination includes sexual orientation and gender identity. Following that decision, the federal Department of Housing and Urban Development issued a memorandum in February 2021 implementing an executive order from President Biden which addresses discrimination because of actual or perceived sexual orientation and gender identity under the Fair Housing Act.

Additionally, the Michigan Court of Claims ruled in December 2020 that the ELCRA’s prohibition against sex discrimination includes prohibition of discrimination based on gender identity.

Although community associations should have already been cognizant not to discriminate on the basis of sexual orientation or gender identity, this new law, and other recent court cases, affirm that these traits are irrelevant to Board decisions. Community associations and their directors need to be aware of this development and ensure their policies and practices are fair to LGBTQ individuals, or they could face civil lawsuits or housing discrimination complaints filed against them with the Michigan Department of Civil Rights.