On Wednesday, just one day after the 7th Circuit U.S. Court of Appeals held that Title VII of the Civil Rights Act bars anti-gay employment discrimination, a federal court found that the Fair Housing Act also protects LGBTQ people. In a concise ruling, U.S. District Judge Raymond P. Moore concluded that the FHA’s ban on sex discrimination prohibited discrimination against a same-sex couple, one of whom is trans. His decision marks the first time a federal court has applied the FHA to anti-LGBTQ discrimination.
The facts behind Wednesday’s ruling are both uncontested. Tonya and Rachel Smith wished to rent a Colorado townhouse owned by Deepika Avanti because their landlord had decided to sell the home they were renting. The Smiths are married with two children; Rachel is transgender. After meeting with the couple, Avanti explained that she and her husband “kept a low profile,” which might be jeopardized by the Smiths’ “unique relationship.” She was also worried about the Smiths’ children and “noise.” Avanti noted that she consulted with a “psychic friend” who “has a transvestite friend herself.” She ultimately refused to rent the townhouse to the Smiths, but continued offering it to other potential renters. The Smiths then spent month trying to obtain adequate housing, finally settling for a subpar apartment out of necessity.
Recognizing that they were victims of bias, the Smiths sued under the FHA and the Colorado Anti-Discrimination Act. Although the FHA does not explicitly prohibit anti-LGBTQ discrimination, it does, like Title VII, bar “discrimination based on sex.” The 10th Circuit U.S. Court of Appeals, which includes Colorado, has established precedent holding that anti-gay and anti-trans do not always qualify as sex discrimination. But that, Moore noted in his ruling, doesn’t end the inquiry, because sex discrimination includes sex stereotyping—the perceived failure to conform to gender norms. As Moore explained:
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.
Turning to the issue of Rachel Smith’s transgender Status, Moore wrote:
The Smiths also contend that discrimination against a transgender (here, Rachel) because of her gender-nonconformity is sex discrimination. In other words, that discrimination based on applying gender stereotypes to someone who was assigned a certain sex (here, male) at birth, constitutes discrimination based on sex. 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.
Thus, Moore ruled in favor of the Smiths’ sex discrimination claim under the FHA. He also ruled for the Smiths on a smattering of related claims, including discrimination based on familial status under the FHA, as well as discrimination based on sex, sexual orientation, and familial status under the Colorado Anti-Discrimination Act.
Moore’s ruling reflects a growing consensus in the federal judiciary that it is impossible to distinguish between sex stereotyping and anti-LGBTQ discrimination. For years, courts attempted to construct a barrier between the two—leading to absurd rulings that, for instance, an effeminate gay man could sue for sex discrimination, but not a traditionally masculine gay man. Moore, like many other judges, simply recognized the indefensibility of this distinction. Sexual orientation discrimination represents hostility toward an individual’s failure to conform to the ultimate gender stereotype—an expectation that they only date the opposite sex. Similarly, anti-trans discrimination always involves animus toward an individual for failing to conform to the sex they were assigned at birth. Both instances constitute a clear case of sex stereotyping.
I asked Omar Gonzalez-Pagan, a Lambda attorney who represented the Smiths, what he made of Wednesday’s ruling. He noted that housing discrimination is a “pervasive problem for LGBT people”—though it is also underreported. Now, however, “for the first time, a federal court has ruled that the Fair Housing Act’s sex discrimination prohibition applies to discrimination based on stereotypes about sexual orientation and gender identity.”
“This ruling coupled with yesterday’s historic decision by the 7th Circuit demonstrates that LGBT people are protected by our federal civil rights laws,” Gonzalez-Pagan continued, “whether it pertains to housing, education, health care, or employment. Our message is clear and simple: Discrimination against LGBT people is unlawful under federal law.”
The courts are hearing that message. And they are finding it very difficult to disagree with.