This article was originally published in the Federal Bar Association’s “OUTside Influence” Spring 2019 Newsletter. To see the original piece and citations, click here.

Seven days after the assassination of Rev. Dr. Martin Luther King, Jr., President Lyndon Johnson signed the Civil Rights Act of 1968.1 This Act expanded the protections of the Civil Rights Act of 1964 to housing discrimination. Title VIII of the Civil Rights Act of 1968 is also known as the Fair Housing Act of 1968 (“FHA”). The current iteration of the FHA is known as Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988.

The present-day text of the FHA protects against discrimination in most private and public housing based on a person’s “race, color, religion, sex, handicap, familial status, or national origin.” Congress  added “sex” as a protected class on August 22, 19745 —a day Congress designated “Women’s Equality Day.” In 1988, Congress added “handicap” and “familial status” as protected classes.

Although Congress has not enacted any major revisions or amendments to the FHA since 1988, the judiciary and executive branches have begun to reassess prior interpretations proscribing FHA protections against sex discrimination based on sexual orientation and gender identity.

In July 2010, the U.S. Department of Housing and Urban Development (“HUD”) announced a new guidance at HUD’s LGBT Pride Month Celebration that treats “gender identity” discrimination as “gender” discrimination under the FHA. HUD also announced that it will retain jurisdiction, jointly investigate, or refer LGBT claims to state, regional, or local governments that have enacted legal protections specifically prohibiting discrimination against LGBT individuals.

In a 2015 Memorandum Opinion, the U.S. District Court for the Northern District of Alabama, Southern Division, ruled that HUD has jurisdiction over FHA discrimination claims based on gender non-conformity as a permissible reading of “sex.” Additionally, HUD has promulgated regulations prohibiting recipients of HUD funding and HUD-insured housing from discriminating on the basis of actual or perceived sexual orientation, gender identity, or marital status. HUD also revised its definition of “family” to include gender neutral terms and variables beyond the traditional nuclear family.

Similarly, in 2015, the Equal Employment Opportunity Commission took the position that sex discrimination includes discrimination on the basis of sexual orientation. Soon after, two federal Courts of Appeals sitting en banc held that Title VII of the Civil Rights Act of 196414 prohibits employment discrimination on the basis of sexual orientation as a form of gender stereotyping.

In 2017, the U.S. Court of Appeals for the Seventh Circuit ruled the plaintiff’s Title VII sex discrimination claim on the basis of her sexual orientation survived her former employer’s
Rule 12(b)(6) dismissal motion. In Hively v. Ivy Tech Community College of Indiana,17 the Court found that “sex” includes sexual orientation discrimination under U.S. Supreme Court precedents prohibiting sex discrimination under either a comparative theory of gender nonconformity or a theory of association.

Likewise, in 2018, the U.S. Court of Appeals for the Second Circuit ruled sexual orientation discrimination claims are actionable under Title VII. In Zarda v. Altitude Express, Inc., the Court primarily relied on the comparative theory prohibiting discrimination based on gender stereotyping  and reinforced the argument with associational discrimination theory. (In April, the Supreme Court granted certiorari in Zarda, and will be addressing this issue next term.) These Title VII rulings are important for claims arising under the FHA, because Title VII and Title VIII (the FHA) are equivalent in function, construction, and application. For this reason, courts often rely upon Title VII precedents to inform FHA decisions.

For example, in 2018, the U.S. Court of Appeals for the Seventh Circuit relied on its 2017 ruling in Hively, discussed above, and found a senior living center violated the FHA by failing to protect a lesbian resident, Marsha Wetzel, from violence and harassment by other tenants. The ruling in Wetzel v. Glen St. Andrew Living Community, LLC25 is important for two reasons. This is the first ruling by a U.S. Court of Appeals prohibiting sexual discrimination on the basis of sexual orientation under the FHA. The ruling also reinforces a landlord’s liability under the FHA for tenanton-tenant discrimination when the landlord has notice of the harassment yet fails to take reasonable steps to stop the harassment.

Of note, in 2017, a U.S. District Court in Colorado abandoned the Tenth Circuit’s anti-LGBTQ rights precedents in Title VII cases and denied a landlord’s unopposed Rule 56 motion for summary judgment against a housing discrimination claim under the FHA and Colorado law. In Smith v. Avanti, the landlord refused to rent a residence to a family consisting of a married couple, transgender woman and woman, with two children, because children make “noise” and the married couple’s “unique relationship.” Previously, the Tenth Circuit expressly ruled Title VII does not prohibit discrimination on the basis of sexual orientation or based on a person’s status as a transsexual. The Smith v. Avanti Court, however, interpreted a Title VII precedent’s footnote as opening the door to extend the FHA to prohibit sex discrimination to discrimination on the basis of gender stereotypes. 

This Court then applied its own FHA analysis to extend the sexual discrimination protections of the Colorado Anti- Discrimination Act. Additionally, in 2018, the Human Rights Campaign Foundation reported twenty-two (22) states have protections against discrimination for sexual orientation in employment and housing and twenty-one (21) states protect against discrimination based on gender identity.  On a national scale, the Human Rights Campaign announced its imminent reintroduction of the Equality Act to the House of Representatives. The bill proposes to expand anti-discrimination statutes and the Civil Rights Act of 1964 to protect against discrimination on the basis of gender identity and sexual orientation. The bill is supported by over one hundred sixty (160) corporations from all fifty (50) states. Should this bill pass, federal courts are likely to expand the protections of the FHA based on Congress’ express extension of Title VII protections against gender identity and sexual
orientation discrimination.

Alison Slagowitz is an Equal Justice Works Georgia Housing Corps Fellow hosted by the Savannah Regional Office of the Georgia Legal Services Program, where she focuses on preservation of affordable and safe housing for low-income tenants. Prior to this, Alison served as Contract law Clerk for the Affirmative Civil Enforcement Unit in the Civil Division for the United States Attorney’s Office for the Southern District of Georgia. Alison graduated summa cum laude and Order of the Oak from Savannah Law School in May 2016. Alison received her undergraduate Bachelor’s Degree in Liberal Arts from Sarah Lawrence College.