The Federal Fair Housing Act makes it unlawful to refuse to rent or sell housing to anyone because of “sex, familial status, or national origin.” But since it says nothing about sexual orientation or gender identity, questions remained regarding whether LGBT people are covered. The answer, an increasingly common one in anti-discrimination cases, was yes. It came from Judge U.S. District Judge Raymond P. Moore in Denver.
Rachel and Tonya Smith described the encounter that led to the ruling in an interview with The Washington Post late Wednesday.
The two, who have known each other since college, were married in 2010 and have two children, 3 and 7. They were looking for housing in April 2015 near Rachel’s workplace in a good school district in the Boulder area when they found on Craigslist just the right townhouse, up in the hills with good access to hiking, which they love, and a reasonable rent of $1,100 a month.
“That’s really good for Boulder,” said Rachel, “considering we had very little money.”
In an email to the landlord, Deepika Avanti, “Tonya discussed her family, including mentioning that Rachel is transgender,” the ruling said. The landlord emailed back, saying the three-bedroom townhouse was indeed available. She asked for a photo of the family and agreed to a meeting.
While visiting the townhouse, they also met a family that lived in an adjoining townhouse.
After the Smiths got home, the landlord emailed them stating that “they were not welcome to rent the Townhouse” because the other family was concerned about the children and “noise.” According to the ruling, the landlord also said she and her husband have “kept a low profile” and “want to continue it’ that way.”
“I was fairly certain what she was implying,” Tonya Smith told The Post. “But I asked for clarification. She said because it was a small town and everybody gossips. Our unique relationship and our status would be the talk of the town. And she wouldn’t be able to keep a low profile anymore.”
The couple had not expected such a reception in Boulder, which they considered an open and tolerant community.
“I was really taken aback,” said Rachel Smith, and thought “‘you can’t do that. You can’t say that to people. That’s not okay.’ I was really frustrated that of all the potential barriers to finding a house, that was the one that would be thrown up.”
The legal question was whether “sex” includes sexual orientation and gender identity, a matter in dispute around the country in several areas of anti-discrimination law, including employment law and Title IX’s prohibition on sex discrimination in schools and colleges.
Moore, in his opinion, cited the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins, an employment discrimination case. The justices held that bias against a woman judged insufficiently feminine, among other things, by male partners was a form of sexual stereotyping and therefore fit the definition of sex in Title VII, the law barring job discrimination.
Rachel and Tonya Smith, Moore wrote, “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,” he wrote. “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.”
Omar Gonzalez-Pagan, a lawyer for Lambda Legal, which represented the couple, said Moore’s ruling was a first in the area of fair housing. “It’s an important ruling,” Gonzalez-Pagan said.
A day earlier, a decision by the Chicago-based U.S. Court of Appeals for the 7th Circuit extended the protection of federal employment discrimination law (Title VII) to LGBT people on the same basis, ruling that sexual stereotyping is a form of sex discrimination notwithstanding the fact that the law passed by Congress makes no mention of sexual orientation.
“Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” U.S. Appeals Court Judge Diane Wood wrote. “That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.”
In the Colorado housing case, Rachel and Tonya Smith, disappointed and bewildered, went on to find another place to live after being refused the townhouse. They are happy and expect to stay there.
The landlord did not file a response to their Fair Housing Act complaint or contest the facts in court and as a result would likely be unable to appeal. Gonzalez-Pagan said discussions are underway with the landlord about a remedy.
The Smiths said they were unaware until the ruling came down that it was groundbreaking.
“This is the first case under the Fair Housing Act dealing with gender identity where there’s been liability found for discrimination based on stereotypes,” Gonzalez-Pagan said.
“It demonstrates the importance of bringing these cases. Housing discrimination is a significant unreported problem” for LGBT people. “Here were two young parents, struggling with all the problems we have, student loans, work, trying to find a good school for their two young kids, housing.
“ … What you are seeing in these cases is a recognition that our civil rights laws really protect LGBT people” and that it “really covers many aspects of our lives, housing, health care. employment, where discrimination just cannot be tolerated.”