A federal judge in Alabama has ruled that some sexual orientation discrimination claims may be made under the federal Fair Housing Act (FHA), a statute that forbids sex discrimination by owners and operators of residential housing facilities. District Judge William M. Acker, Jr., ruling on June 16, rejected the argument that the court would not have jurisdiction over any sexual orientation discrimination claim under the FHA.
James Earl Thomas filed suit against Carlos Osegueda, a regional director for the Department of Housing and Urban Development (HUD), and Christian Newsome, a claims investigator, for refusing to process his discrimination claim. Acker’s decision says little about the nature of the underlying claim, other than that Thomas claims he was discriminated against by Aletheia House, a recipient of federal housing funds, “because he is not gay.”
According to Acker, Thomas claimed that “he was discriminated against based on his conformity to male stereotypes, such as stereotypes regarding cooking and buying furniture.” The reference to male stereotypes is significant, since some courts have found a basis for extending sex discrimination protections to plaintiffs making sexual orientation discrimination claims based on the sex stereotyping theory.
“Not gay” man establishes important point before federal judge, but does not himself benefit
Thomas filed a petition seeking a court order directing Osegueda and Newsome to process his claim. On January 26, Acker ordered the two HUD officials to explain why a hearing on the matter was not required. On March 13, they responded, asking Acker to reconsider and to dismiss Thomas’ petition for lack of jurisdiction. The FHA, they argued, “does not give” the agency “jurisdiction to investigate and prosecute complaints raising allegations of discrimination based on sexual orientation.”
Acker noted that in the past courts had routinely dismissed sexual orientation discrimination claims under federal sex discrimination statutes, but that HUD “has taken several steps to clarify and reinforce the fact that certain acts of discrimination based on sexual orientation are in fact within its jurisdiction.” Congress has never amended any of the federal sex discrimination laws to explicitly add “sexual orientation” to the forbidden grounds for discrimination, but, Acker wrote, “HUD has taken an increasingly expansive view of its delegated authority under the FHA relating to discrimination based on sexual orientation.”
In 2010, HUD issued an internal guidance document stating that “while the [FHA] does not specifically include sexual orientation and gender identity as prohibited bases… [an] LGBT person’s experience with sexual orientation or gender identity discrimination may still be covered by the [FHA].”
In February 2012, HUD “published a final regulation, the Equal Access Rule, to implement ‘policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status,’” Acker noted. “The core provision of this new rule revised the eligibility requirements for HUD-assisted or insured housing to now require ‘such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.’”
Specifically, the judge noted, HUD took the position that “certain complaints from LGBT persons would be covered by the Fair Housing Act… including discrimination because of nonconformity with gender stereotypes.”
The agency also explained that it could investigate and enforce such claims “as sex discrimination.” In an “interpretive document” published in August 2014, HUD offered, as an example of such a claim, the harassment of a gay man by a maintenance worker at a public housing complex because of his effeminate demeanor.
The task before Acker, then, was to determine whether “HUD’s interpretation of its authority squares with the statutory language of the FHA” — and he concluded that it did, so long as HUD did not seek to assert its jurisdiction to sexual orientation claims that did not include a plausible allegation of sex stereotyping. The sex stereotyping theory was recognized as early as 1989 by the US Supreme Court, in a case of a masculine-acting woman challenging Price Waterhouse’s refusal to make her a partner. Since then, and most emphatically since President Barack Obama took office in 2009, federal agencies have advanced the sex stereotyping theory to find a basis for protecting gay and transgender people.
The Equal Employment Opportunity Commission, which enforces Title VII of the Civil Rights Act of 1964, recently sent a memorandum to its regional offices similarly suggesting that they could accept employment discrimination claims from gay people using this theory in appropriate cases, and some federal district courts have refused to dismiss Title VII sex discrimination charges filed by gay men using this theory.
“These types of expanded protections for such individuals under the FHA is directly rooted in non-conformity with male or female gender stereotypes, and not directly derivative of sexual orientation as an independent and separate ground for protection,” wrote Acker. “Considering the deference due by the court to agency interpretations, HUD’s narrow tailoring of jurisdiction for discrimination based on sexual orientation to protections for gender stereotyping in its interpretation of the FHA is a permissible reading of ‘sex.’”
However, this conclusion was no help to James Earl Thomas, who had alleged discrimination under a housing program because he “is not gay.”
“Thomas does not petition under a theory of gender non-conformity but rather relies on sexual orientation as the sole basis for discrimination separate and independent of gender,” wrote Acker, emphasizing that Thomas claimed he was discriminated against because of his “conformity to male stereotypes,” not because of a departure from such stereotypes.
There is a certain illogic here. If a man suffers discrimination because he conforms to male stereotypes, wouldn’t that be a form of sex discrimination? But, as Acker pointed out, Thomas insisted he was suffering discrimination because “he is not gay,” and so was claiming sexual orientation discrimination, not sex discrimination.
