FAIR HOUSING MONTH BRIEFING:
HUD’s Recent Revision of Discrimination ‘Because of Sex’
S
ince a 1974 amendment to the original 1968 Fair Housing Act (FHA), it has been illegal across the nation to discriminate in any housing-related activity ‘because of sex.’ Sex was added as a fifth basis covered by the FHA, which originally focused on race, color, religion and national origin. That change, brought about by the same law that among other things created the Community Development Block Grant (CDBG) program, was consistent with many changes in federal law outlawing sex discrimination that took place in the 1970s. As some will remember, during that time there was an ultimately unsuccessful attempt to adopt the Equal Rights Amendment (ERA) to the United States’ Constitution. Interestingly, due to the unintended consequence of an unsuccessful ‘poison pill’ attempt to scuttle the Civil Rights Act of 1964, the outlawing of sex discrimination in employment had been the law of the land for 10 years at the
time of the FHA’s amendment. That last fact is of consequence, because it is the judicial interpretations of the protection ‘because of sex’ available in the context of employment that have now given rise to an expansion by the U.S. Department of Housing and Urban Development (HUD) in how it will treat claims of discrimination ‘because of sex’ in the housing context. It should be noted that it is not that unusual that interpretations of anti-discrimination provisions of employment law have an influence on housing discrimination law. A substantial amount of the legal framework applied to analyzing and shaping housing discrimination litigation has originated from civil rights cases dealing with employment discrimination. Throughout most of its history, the basis of ‘because of sex’ had been fairly narrowly interpreted. Generally, it was viewed from the point of view that sex should be taken to mean a person’s gender as determined at birth. Differential
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April 2021
BY DAVID LEVY, PROGRAMS SPECIALIST, FAIR HOUSING COUNCIL OF ORANGE COUNTY
or adverse treatment shown to have been motivated by that gender were found to be discriminatory. Also, due to fact that women are overwhelmingly the victims of sexual harassment, courts had found in both the employment and housing contexts that ‘because of sex’ is applicable to address that harassment. Similarly, in the housing context it was found applicable to discriminatory conduct towards victims of domestic violence, who again are overwhelmingly women. However, until recently the interpretation did not extend to differential or adverse treatment based on person’s sexual orientation or gender identity. On June 15, 2020, the U.S. Supreme Court issued a ruling covering three cases that had arisen from and formed a ‘split decision’ within three different federal Circuit Courts of Appeals. In an employment case known as Bostock v Clayton County, by a 6–3 ruling, the Court determined that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination “because of sex” as prohibited by Title VII of the Civil Rights Act of 1964. In light of that ruling, fair housing advocates were quick to pronounce that litigation to address housing discrimination on the basis of person’s sexual orientation or gender identity, including a person being transgender, would be viable under the FHA, given its same use of the ‘because of ’ construction. HUD Revision — continued on page 24
