Decision extends fair housing sex discrimination protection on the basis of sexual stereotyping
[Inman] In April 2015, landlord Deepika Avanti refused to rent one of her townhouses to the Smith family in the tiny town of Gold Hill, Colorado, in Boulder County.
Avanti denied the Smiths, spouses Tonya Smith and Rachel Smith, who is transgender, and their two children, housing because of concerns regarding the children and “noise” as well as the Smiths’ “unique relationship,” which Avanti feared would become the focus of the small community and jeopardize her and her husband’s “low profile.”
Thus rebuffed, the Smith family searched for months for another place to live and settled on a place that was less suitable to their needs.
The family later sued Avanti, alleging sex discrimination and familial status discrimination in violation of the Fair Housing Act (FHA) and the Colorado Anti-Discrimination Act. The family also alleged sexual orientation discrimination under the CADA.
Now, just in time for Fair Housing Month, a federal court last week found for the first time that the prohibition against sex discrimination in the Fair Housing Act covers LGBT people. The court ruled in favor of the family on all five counts.
John Graff, a real estate broker and chair of the policy committee for the National Association of Gay and Lesbian Real Estate Professionals (NAGLREP), praised the court’s ruling.
“Those of us in the LGBT community may be used to facing discrimination, but the indignity and feeling of helplessness never fade,” Graff told Inman via email. “The recent federal court decision stating unequivocally that federal fair housing protections apply to LGBT Americans is the latest domino to fall in the fight to recognize our community as equally worthy of the rights shared by our neighbors.”
State of the Fair Housing Act
The Fair Housing Act, which real estate agents and brokers must adhere to, forbids housing discrimination on the basis of:
- Color, or the pigment of someone’s skin
- Religion, including beliefs as well as non-beliefs
- National origin, or a person’s birthplace, ancestry, language and/or customs
- Disability, or any physical or mental factor that impairs any major life function, such as seeing, hearing, breathing, walking, speaking, learning or interacting with others — in addition, this applied to any person who has a physical or mental impairment, a history of disability or is perceived as being disabled
- Familial status, or households with pregnant women or children under 18, with an exception made for senior/elderly housing
Last Wednesday, U.S. District Judge Raymond P. Moore ruled that denying housing for failure to conform to sex stereotypes constitutes sex discrimination under the FHA and the federal law therefore protects lesbian, gay, bisexual and transgender people.
Moore explicitly declined, however, to rule that discrimination solely on the basis of sexual orientation or gender identity — without sex stereotyping — would violate the FHA.
Still, the court’s decision does extend FHA sex discrimination protection on the basis of sexual stereotyping, wrote law firm Nixon Peabody LLP following the ruling.
“Depending on the facts of individual cases and how broadly the concept of sexual stereotyping is applied, those protections may cover much of the same territory as sexual orientation/gender identity protections would cover,” the firm wrote.
Graff doesn’t think the ruling will change much for LGBT real estate agents or LGBT clients, but that it may deter any remaining real estate professionals who refuse to treat LGBT people equally.
“We knew we were worthy of equality before this decision and we feel just as confident in our humanity after the decision,” Graff said. “If anything, the ruling should be a stark warning to those shrinking few who insist on allowing their personal bigotry to encroach upon the property rights of others.”
The ruling also adds to another recent federal decision in favor of LGBT housing rights.
In September, the U.S. Department of Housing and Urban Development (HUD) amended its 2012 Equal Access Rule to include protection for transgender and gender non-conforming individuals, ensuring that housing assisted or insured by the department — including single-sex shelter — is open to all eligible individuals, regardless of gender identity.
Moore’s ruling on sexual stereotyping, discrimination
In his ruling, Moore wrote: “In this case, the Smiths contend that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should be attracted, should marry, and/or should have children is discrimination on the basis of sex under the FHA. The Court agrees.
“Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”
Moore also agreed with the Smiths’ assertions that discrimination against a transgender person because of her gender-nonconformity is sex discrimination.
“To the extent the Smiths contend that discrimination against Rachel because she does not conform to gender norms of a male, e.g., does not act or dress like the stereotypical notions of a male, the Court agrees.”
But Moore declined to find violations of the Federal Housing Act based only on sexual orientation or gender identity discrimination, mainly because the Smiths did not argue their case on that basis, but rather on sex stereotyping.
Graff agreed with the finding that federal fair housing protections extend to the LGBT community based upon existing protections against sex discrimination.
“Requiring adherence to gender-based societal norms is sex discrimination. The court extended the same laws that protect a woman’s right to wear pants to work to a woman’s right to choose who she dates and marries,” he said.
“The court decision sets into precedent what a majority of Americans already know: LGBT people are deserving of the same rights and responsibilities to which all are entitled.”