Discrimination with a Smile

RAINBOW RESISTANCE

Discrimination with a Smile

How Gender Identity and Expression are Treated in the Rental Market

By Jamie Langowski

Deals are often sealed with a handshake and a smile. The problem is that discrimination also often occurs with a handshake and a smile, making it difficult to detect. Many people suspect that they were discriminated against while searching for housing, but have no proof. Alternatively, others are completely unaware that they were treated differently than their fellow housing seekers. When two people meet with the same housing provider about the same property in close temporal proximity, one would assume that they would be treated similarly. In a recent HUD-funded study, Suffolk University Law School Housing Discrimination Testing Program used matched pair testing and uncovered evidence of discrimination against trans and gender nonconforming housing seekers in Massachusetts.

Classes that are protected under federal housing law include race, color, religion, national origin, families with children, disability, and sex. States have the ability to increase protections by adding classes to the protected list, and, in 2012, Massachusetts became one of 20 states (including DC) to add gender identity to its housing anti-discrimination law. Expanding the enumerated protected classes to include gender identity and expression makes it illegal to discriminate against trans or gender nonconforming housing seekers and, if discrimination does occur, provides the victim with legal recourse. Today, other states are contemplating adoption of legislation similar to Massachusetts, but is it needed? Is discrimination based on gender identity occurring in the rental housing market? The answer is yes.

Suffolk University Law School started the Housing Discrimination Testing Program (HDTP) in 2012, not long after Massachusetts expanded its protections to include gender identity as a protected class. The HDTP educates people about fair housing laws, represents people with fair housing claims, and conducts tests to determine whether discrimination is occurring in the rental housing market. A test involves sending a pair of similarly qualified people out to pretend to be interested in renting a property to evaluate how people are being treated. The testers are as similar as possible in all respects, except that one belongs to the protected class and the other does not. The value of matched pair testing is that it reveals discriminatory differences in treatment that cannot be masked by a friendly demeanor.

Is discrimination based on gender identity occurring in the rental housing market? The answer is yes.

Over a nine-month period, spanning 2016 and 2017, the HDTP conducted a small-scale empirical study to measure the level of discrimination faced by trans and gender nonconforming people seeking rental housing in Metro Boston. The study, led by Professor William Berman, Regina Holloway, Jamie Langowski, and Camron McGinn, is published in the spring 2018 issue of the Yale Journal of Law and Feminism. Overall, the study revealed evidence of discriminatory differential treatment in 61 percent of the tests and produced statistically significant data regarding the specific ways that discrimination is occurring.

Housing providers are discriminating against this class in subtle and hard-to-detect ways. Specifically, testers were 27 percent less likely to be shown amenities outside the unit; 21 percent less likely to be offered a financial incentive to rent; 12 percent more likely to be told negative comments about the apartment and the neighborhood; and nine percent more likely to be quoted a higher rental price. These examples of differential treatment are nearly impossible for a housing seeker to uncover independently.

South End in Fall (2018).

Art: Eli Portman

The HDTP recruited 33 trans and/or gender nonconforming people (protected class testers or “PC testers”) and 33 cisgender and gender conforming people (“Control testers”). A test coordinator directed pairs of testers to inquire about advertised housing, and then collected detailed reports from the testers after their site visits. Testers were matched in pairs based on factors such as age and race. The testing coordinator assigned both testers similar profiles in terms of income and other qualifications to rent the apartment, so the only difference between the two was that one was in the protected class and one was not.

The narratives from the tests demonstrate how trans and gender nonconforming housing seekers are being treated differently. In one test, the housing provider told the gender nonconforming tester that the move-in costs included deposits for the first and last months and cleaning, but told the gender conforming tester that move-in costs included just one month’s rent. Additionally, the housing provider told the PC tester that they could leave the application on the top of the mailbox for the agent but told the Control that if she wanted to apply, the agent would go to her to retrieve the deposit check. This test is representative of what the data suggest is a trend in which gender nonconforming testers were not denied the opportunity to begin the rental application process, but did not receive the same level of customer service as others, and were presented with higher financial requirements. In comparison, overt discrimination, for example, a housing provider’s persistent use of a tester’s legal name despite the PC tester’s repeated request to be addressed by their chosen name, was only present in one test. In the overwhelming majority of the tests, a smile hid differential treatment and discrimination.

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A landlord should only care about three things: ability to pay rent, care of their property, and whether a tenant will be a good neighbor. None of these can be predicted by gender identity or expression. For those seeking housing, it is important to know how such discrimination manifests so that you can be prepared in advance. Before you meet in person or submit an application, ask over the phone for information regarding price, rent incentives, and move-in costs. Contact a fair housing organization, such as Suffolk’s Housing Discrimination Testing Program, or file a complaint if you suspect that you may have been treated unfairly. New laws adding gender identity and expression to the group of protected classes do not magically stop all discrimination from occurring. However, such laws do provide a legal tool for those harmed by discrimination to find relief, and highlight ways in which trans and gender nonconforming housing seekers can arm themselves with knowledge. It is also a strong indication in support of a cultural shift away from historic patterns of discrimination against trans and gender nonconforming people.

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Jamie Langowski is Clinical Fellow at Suffolk University Law School and Assistant Director of Suffolk’s Housing Discrimination Testing Program (HDTP). The HDTP’s mission is to eliminate illegal housing discrimination through testing, enforcement, and education. Since 2012, Attorney Langowski has coordinated hundreds of housing discrimination tests of the rental market throughout Massachusetts. She and her colleagues have trained hundreds of people as testers. Before joining Suffolk, she clerked for a Boston civil rights attorney and served as Director of Policy and Communications for a Boston At-Large City Councillor. Attorney Langowski is a graduate of Northeastern University School of Law and St. Cloud State University