The Evolving Landscape of Sex Discrimination in Housing

Aimee Stephens worked as a funeral director for R.G. and G.R. Harris Funeral Home in Garden City, Michigan for several years. Throughout that time, she struggled with her gender identity and, in 2013, she began dressing as a woman at work. The funeral home’s dress code was strictly gender-based and Stephens’ refusal to dress as a man, in compliance with the gender-based dress code, resulted in her termination (see more information here). Aimee Stephens filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”), alleging her termination was the result of unlawful sex discrimination. The EEOC brought a lawsuit against the funeral home in the Eastern District of Michigan and the case is now in front of the United States Supreme Court, with oral arguments recently heard on October 8, 2019 (see more information here).

On its face, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission is a discrimination claim solely relegated to the employment world; however, the United States Supreme Court’s decision on whether sex discrimination includes a person’s transgender or transitioning status and a person’s refusal to conform to sex-based stereotypes will also impact housing laws and whether homeowners may bring a housing sex discrimination claim on the basis of a person’s transgender or transitioning status and a person’s refusal to conform to sex-based stereotypes.

The Fair Housing Act and Elliott-Larsen Civil Rights Act

The Fair Housing Act, codified at 42 USC § 3601 et seq., prohibits discrimination:

… against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

42 USC § 3604(b)

Michigan’s Elliott-Larsen Civil Rights Act, codified at MCL 37.2101 et seq., also prohibits sex discrimination, in part:

… against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction.

MCL 37.2502(1)(b)

As noted above, while both the Fair Housing Act and Elliott-Larsen Civil Rights Act prohibit sex discrimination, neither explicitly prohibit discrimination on the basis of a person’s transgender or transitioning status. As a result, agencies and federal courts have been left to figure out whether sex discrimination also prohibits discrimination on the basis of a person’s transgender or transitioning status.

The Department of Housing and Urban Development (HUD) and the Michigan Civil Rights Commission (MCRC)

Because of the lack of clarity in current legislation, agencies receiving discrimination complaints on the basis of a person’s transgender or transitioning status have set their own guidelines on whether sex discrimination includes a person’s transgender or transitioning status.

On July 1, 2010, HUD released the following guidance to its staff regarding housing discrimination based on sexual orientation and gender identity:

The new guidance treats gender identity discrimination most often faced by transgender persons as gender discrimination under the Fair Housing Act, and instructs HUD staff to inform individuals filing complaints about state and local agencies that have LGBT-inclusive discrimination laws.

For example, … if a female prospective tenant is alleging discrimination by a landlord because she wears masculine clothes and engages in other physical expressions that are stereotypically male, then the allegations may be jurisdictional under the Act as discrimination based on gender.

See here.

On May 21, 2018, the MCRC released Interpretive Statement 2018-1 regarding the meaning of “sex” in the Elliott-Larsen Civil Rights Act, stating the following:

The Michigan Civil Rights Commission hereby resolves, and adopts as Interpretive Statement 2018-1, that, as used in the Elliott Larsen Civil Rights Act “discrimination because of… sex” includes discrimination because of gender identity and discrimination because of sexual orientation.

…the Department of Civil Rights shall therefore process all complaints alleging discrimination on account of gender identity and sexual orientation as complaints of discrimination because of sex, and therefore discrimination prohibited under the Elliott Larsen Civil Rights Act.

See here.

Notably, Interpretive Statement 2018-1 specifically relied on the Sixth Circuit Court of Appeals’ decision in R.G. & G.R. Harris Funeral Homes for its position that sex discrimination as used in federal civil rights laws protects a person based on their transgender or transitioning status.

Federal Courts’ Reliance on Employment Law in Housing Discrimination Claims

Federal courts have also been grappling with whether discrimination complaints on the basis of a person’s transgender or transitioning status fall under the umbrella of sex discrimination. At least two federal courts have relied on employment discrimination cases in reaching their opinions, the most notable of which is Price Waterhouse v Hopkins, 490 US 228, 251 (1989), holding employers could not engage in sex stereotyping when evaluating employees “by assuming or insisting that they matched the stereotype associated with their group….”

In Kaeo-Tomaselli v Pi’ikoi Recovery House for Women, No. CIV. 11-00670 LEK (D Hawaii, 2011), p 3, the District Court of Hawaii reviewed a Fair Housing Act discrimination claim on the basis of gender identity and determined the following:

Gender stereotyping is direct evidence of sex discrimination. See Price Waterhouse v Hopkins, 490 US 228, 251 (1989)… The Ninth Circuit has also held that transgender individuals may state viable sex discriminations claims on the theory that the perpetrator was motivated by the victim’s real or perceived failure to conform to socially-constructed gender norms.

In Smith v Avanti, 249 F Supp 3d 1194, 1200-01 (D Colo, 2017), the District Court of Colorado held that a failure to conform to gender stereotype norms is sex discrimination under the Fair Housing Act, stating the following:

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. See Price Waterhouse, 490 U.S. at 250, 109 S Ct. 1775 (“an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender”); id. at 251, 109 S Ct 1775 (“we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group”).

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. See, e.g., Smith, 378 F3d at 575.

Both cases evidence the federal courts’ willingness to rely on employment law precedent in deciding whether housing discrimination claims on the basis of a person’s transgender or transitioning status, to the extent they allege discrimination due to a failure to conform to sex stereotype norms, are actionable.

Legislative Action on Sex Discrimination

There is movement on both the federal and state level to amend the Fair Housing Act and Elliott-Larsen Civil Rights Act to specifically include protections based on one’s gender identity and sexual orientation, which would make clear for both agencies and courts whether housing claims based on one’s transgender and transitioning status are viable.

At the federal level, four bills have been introduced in the U.S. House of Representatives and U.S. Senate to amend the Fair Housing Act to specifically include within the definition of “sex” both sexual orientation and gender identity. As of the date of this posting, H.R. 5, 116th Cong. (2019) has been received in the U.S. Senate and referred to the Committee on the Judiciary; S. 1246, 116th Cong. (2019) has been referred to the Senate Committee on the Judiciary; H.R. 2402, 116th Cong. (2019) has been referred to the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties; and S. 788, 116th Cong. (2019) has been referred to the Senate Committee on the Judiciary.

In Michigan, two bills have been introduced in the State House of Representatives and State Senate to include within the Elliott-Larsen Civil Rights Act sexual orientation and gender identity or expression as distinct areas of protection (rather than including them within the definition of “sex”). As of the date of this posting, Michigan Senate Bill No. 251 has been referred to the Senate Committee on Government Operations and Michigan House Bill No. 4688 has been referred to the House Committee on Government Operations.

In the meantime, a decision from the United States Supreme Court is expected in R.G. & G.R. Harris Funeral Homes Inc., and based on the federal courts’ historic reliance on employment case law as it relates to housing discrimination claims, it is not a far stretch to anticipate R.G. & G.R. Harris Funeral Homes Inc.’s decision will affect the viability of transgender and transitioning housing discrimination claims unless and until federal and state legislation fills in the gap.

How This May Affect Your Community Association

While agencies, courts and legislatures are attempting to provide clarity on the breadth of sex discrimination claims under the Fair Housing Act and state laws, your community association may encounter this problem before clarity arrives. As of June 2016, almost 1.4 million adults identified as transgender (see here), and as of January 2019, almost 2 percent of high school students identify as transgender (see here). Possible housing discrimination claims on the basis of a person’s transgender or transitioning status that may arise in community associations include homeowner harassment of the individual and requests from the individual to access the locker room, changing room or bathroom that matches their gender identity. Community associations who encounter these issues should contact legal counsel who specialize in community association law to help guide their association through the nuances and evolving landscape of sex discrimination claims under federal and state law.

Kayleigh B. Long is an attorney with Hirzel Law, PLC and focuses her practice in the areas of appellate law, community association law and civil litigation. Ms. Long received her Bachelor of Arts degree in International Studies from Indiana University. Prior to attending law school, Ms. Long joined Teach for America, teaching kindergarten in Harper Woods, Michigan and southeast Washington, D.C., and received a Master of Arts in Teaching from Oakland University. Ms. Long then obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Her law review note was selected for publication in the Indiana Law Review, and she recently had an article published in the Denver Law Review. She can be reached at (248) 478-1800 or klong@hirzellaw.com.