AuthorKeenan, Cayla

As of 2019, there are no federal laws that protect against housing discrimination for LGBTQIA+ ("queer") Americans. (1) Protections against discrimination on the basis of sex were added to the Fair Housing Act in 1974, however, there are still no federal legal protections that prevent housing discrimination against queer people. (2) In many of these discrimination cases, courts look to the expanded protections codified in Title VII of the Civil Rights Act of 1964 ("Title VII") to determine if the denial of housing is discriminatory. (3) In addition to banning discrimination based on sex, Title VII also protects against discrimination based on "sexual stereotypes." (4) These protections were then applied in Smith v. Avanti (5) where the judge used Title VII legal precedent to find that, by refusing to rent to the Plaintiffs, the Defendant had engaged in discriminatory housing practices. (6)

The Plaintiffs, Rachel and Tonya Smith ("Plaintiffs"), are a lesbian couple, one of whom is transgender, and residents of Colorado. (7) In April 2015, the Plaintiffs began searching for a new apartment as their current apartment was being sold. (8) The couple learned of a townhouse in Golds Hill, Colorado, which was advertised by Deepika Avanti, (hereinafter "Defendant"); they subsequently filled out an application and communicated their interest in renting the property. (9) The Plaintiffs viewed the available units and met the family living in the adjacent townhouse. (10) Shortly after the tour, the Defendant emailed the Plaintiffs and informed them that they were not permitted to rent any property that she owned. (11) In the email, the Defendant explained that she and her husband were dedicated to keeping "a low profile" and that the "uniqueness" of the Plaintiffs' family would damage the Defendant's reputation within the community, which she had maintained for thirty years. (12)

The Plaintiffs were "shocked and upset by Deepika's emails" and decided to pursue legal action against the Defendant for her discriminatory comments, which they described as "unfair and illegal." (13) In addition, Plaintiffs could not find suitable accommodations before their old apartment was sold and, as a result, had to move in with Rachel's family for a period of time. (14) The Plaintiffs filed suit on five counts due to the hardships they endured because of the Defendant's discriminatory actions. (15) The Plaintiffs moved for summary judgement as to liability on all claims and the Motion went unopposed. (16) This case demonstrates a verifiable shift in the way cases of housing discrimination on the basis of sex and sexual orientation are litigated, and marks a departure from long-standing precedent. (17)

In 1968, President Lyndon B. Johnson signed the Civil Rights Act of 1968 as a "follow-up" to the Civil Rights Act of 1964. (18) The Act was codified after a long and arduous battle in Congress, and likely would not have passed if not for both the galvanizing effect of Dr. Martin Luther King Jr.'s assassination in 1968 and the mounting pressure from families of fallen soldiers of the Vietnam War. (19) Many soldiers who died overseas were African American or Latinx, and their families could not purchase or rent homes due to normalized housing discrimination practices. (20) There is a notable lack of protection on the basis of sexuality or gender identity, even with additional amendments to the Act that forbid discrimination on the basis of "sex, religion, ethnic origin, family status, or disability[,]"; as of 2016, only twenty states had passed legislation that ban housing discrimination against queer people. (21) This lack of protection has led to a precipitous but chronically underreported rise in housing discrimination against queer Americans. (22) In 2012, the Department of Housing and Urban Development ("HUD") implemented a policy, which required that any housing providers receiving HUD funding must make their housing accessible to all persons, "regardless of sexual orientation, gender identity, or marital status"--a small but important step in protecting queer housing rights nationwide. (23)

Although there are no statutory federal protections that ban housing discrimination against queer people, there has been progress in providing queer people equal opportunities within the workforce. (24) While outlawing discrimination based on sex and sexual stereotypes did not create explicit protection against anti-queer discrimination, it did, however, open the door for courts to use this language to affect change. (25) With the limited protection of the Fair Housing Act, many courts instead look to Title VII for guidance on how to rule in anti-queer housing discrimination cases. (26) The significance of Title VII's interpretation cannot be overstated, and recent Supreme Court rulings regarding Title VII have the potential to create widespread changes to prevent housing discrimination against queer people. (27)

Despite several steps forward, numerous state legislatures continue to resist providing protections for queer Americans. (28) Along with religious exemptions that provide loopholes to perpetuate discrimination, many lawmakers deliberately fight against proposed bills that would expand the language in the Fair Housing Act and Title VII. (29) Within the judicial system, courts in many jurisdictions do not seek to protect queer people from discrimination under Title VII, and subsequently, the Fair Housing Act. (30) The widespread hesitance of the courts to expand protections is what led progressive judges to use "sex stereotypes" as an inroad to broaden antidiscrimination holdings. (31) It is through this language that courts have begun to rule in favor of queer plaintiffs who claim discrimination. (32) Unfortunately, many courts still make a point to differentiate between using Title VII's language to protect those who simply do not conform to sexual stereotypes, and using that precedent to also protect queer plaintiffs from discrimination outright. (33)

In Smith v. Avanti, the United States District Court for the District of Colorado ruled in favor of the Plaintiffs, and found that the Defendant had violated the Fair Housing Act's ban on discrimination on the basis of sex by not renting Plaintiffs the townhouse. (34) Following existing precedent, the court looked to Title VII to determine whether discrimination on the basis of sexual stereotypes falls under discrimination on the basis of sex, though the exact language does not exist in the Fair Housing Act. (35) Specifically, the court determined that the Defendant's comments that the Plaintiffs' family's "uniqueness" barred them from renting the townhouse was discriminatory language, as it "rel[ied] on stereotypes of to or with whom a woman (or man) should be attracted, should marry, or should have a family." (36) Despite the fact that the Defendant did not oppose the Plaintiffs' Motion for Summary Judgment, the court's ruling solidifies a growing trend towards using the language of "sexual stereotypes" under Title VII to find discrimination on the basis of sex in housing cases. (37)

In finding that there was discrimination, the Smith court builds upon previously thin precedent and establishes a firm case for using the language of "sexual stereotypes" as a shield against housing discrimination for queer Americans. (38) Before this ruling, the language of Title VII, while used to guide housing discrimination law, had not yet been applied as a way to find discrimination on the basis of sex, as outlawed by the Fair Housing Act. (39) The judge in the Smith case looked to the history of employment discrimination on the basis of sex and "sexual stereotypes" before transferring the logic of those rulings to Smith v. Avanti (40) Although housing discrimination against queer Americans has been both rampant and underreported throughout history, hopefully the court's ruling in this case will set a new precedent for courts in other jurisdictions using Title VII's language to provide protections against housing discrimination alongside employment discrimination.41

Although Smith marks a decisive victory for progress, housing equality is still not guaranteed for queer Americans. (42) In the absence of federal protection, many states have laws that explicitly allow landlords to discriminate against potential tenants based on their sexual orientation. (43) Despite HUD's implementation of an anti-discrimination policy for any housing development receiving federal funding, private housing in unprotected states is still rife with discrimination. (44) Moreover, despite this step forward, the law is still woefully inadequate when it comes to the protection of queer Americans, including transgender and gender-nonbinary individuals, who may face equal if not more discrimination, and are still wholly unprotected. (45)

Thankfully, some of the uncertainty regarding the Smith decision has been assuaged as of June 15, 2020. (46) On October 8, 2019 the Supreme Court of the United States heard testimony regarding discrimination on the basis of sexual orientation and gender identity under Title VII. (47) Though not ubiquitous, courts have begun using the language of Title VII to shield queer plaintiffs from discrimination on the basis of their sexual orientation or gender identity. (48) However, if the Supreme Court had not ruled that both sexual orientation and gender identity do, in fact, fall under the purview of discrimination on the basis of sex, it would still be federally lawful to discriminate against queer Americans. (49) Additionally...

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