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Federal Court Rules for “Unique” Family in Fair Housing Act Case

Posted on: April 12th, 2017 by Art Leonard No Comments

A federal district judge in Colorado granted summary judgment under the Federal Fair Housing Act (FHA) on April 5 to a couple in a “unique relationship” who were turned down by a landlord who had two residential properties available for rent that would have met the needs of the couple and their family. Judge Raymond P. Moore found that in turning down two woman (one of whom is transgender) who are married to each other and their two children as tenants, the landlord had discriminated against them because of their sex, as well as their familial status, both of which are forbidden grounds of discrimination under the federal law.

The court also granted judgment to the plaintiffs under Colorado’s Anti-Discrimination Act, which explicitly bans discrimination because of sexual orientation or transgender status as well as familial status.

The landlord, Deepika Avanti, owns three rental properties close to each other in Gold Hill, Colorado. Two are single family houses, and the third is a building subdivided into two separate living spaces, referred to as “townhouses.”  As of April 24, 2015, one of the townhouses was rented to a heterosexual couple, Matthew and Chiara, and the other was being advertised for rent on Craigslist.

The plaintiffs are Rachel Smith, a transgender woman, and Tonya Smith. They had been married for five years and were living with their two children in rental housing that they had to vacate because the building was being sold and withdrawn from the rental market.  They responded to the Craigslist advertisement by emailing Avanti.  “In the email, among other things, Tonya discussed her family, including mentioning that Rachel is transgender,” wrote Judge Moore.  Avanti responded to the email, mentioning that both the townhouse and one of the single family houses, which had three bedrooms, were available for rent. She also asked Tonya to send photos of her family.  Replying by email, Tonya agreed to meet Avanti that evening and attached a photo of the Smith family.

Tonya and Rachel and their children met with Avanti that evening and got to view the townhouse and the single-family house that were available for rent. They also got to meet Matthew and Chiara, the tenants of the other townhouse.  After she returned to her home, Avanti emailed Tonya Smith twice that night.  In the first email, she told Tonya that they were “not welcome to rent the Townhouse because of Matt and Chiara’s concerns regarding their children and ‘noise.’”  In the second email, Avanti said she had talked to her husband and “they have ‘kept a low profile’ and ‘want to continue it’ that way,” so they would not rent either residence to the Smiths.

The next morning, Tonya emailed Avanti, asking what she meant by “low profile.” Avanti replied “that the Smith’s ‘unique relationship and ‘uniqueness’ would become the town focus and would jeopardize [Avanti’s] low profile in the community.”

It took the Smiths months to find a suitable place to rent. Because they had to vacate their existing residence, they moved in with Rachel’s mother for a week and had to shed possessions to fit into a small space.  The new apartment they found did not meet their needs as well as Avanti’s property would have done, due to the location.  Their new apartment placed them in a less desirable school district for the children and required a longer daily commute to her job for Rachel, although she subsequently switched to a job closer to their new apartment.

They sued in federal court, asserting claims under the Fair Housing Act and the Colorado Anti-Discrimination Act. The basis for the federal court having jurisdiction to hear the case was the federal statutory claim, which was divided into a sex discrimination claim and a familial status claim.

The more significant part of the ruling for purposes of LGBT law is the federal sex discrimination claim. Federal discrimination statutes do not at present expressly forbid sexual orientation or gender identity discrimination, but courts are increasingly willing to apply bans on sex discrimination to claims brought by GLBT plaintiffs.  Although the Department of Housing during the Obama Administration took the position that the FHA should be construed to apply to sexual orientation and gender identity discrimination, the Trump Administration has not announced a position on this.  Judge Moore’s opinion thus may be breaking new ground by granting summary judgment in favor of the Smiths on their sex discrimination claim.

Because Colorado is within the 10th Circuit, Judge Moore had to follow 10th Circuit precedent in determining whether the Smiths could sue for sex discrimination under the Fair Housing Act.  The Smiths had argued that discrimination based on “sex stereotypes” is “discrimination based on sex” under the FHA.  Moore pointed out that the 10th Circuit has followed court rulings under Title VII of the Civil Rights Act when interpreting the FHA discrimination ban, and that the 10th Circuit has an employment discrimination ruling on a claim by a transgender plaintiff, Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007).  In that case, the court ruled that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” and that “Title VII protections” do not extend to “discrimination based on a person’s sexual orientation.”  However, the Etsitty opinion did recognize the possibility that a gay or transgender plaintiff might claim sex discrimination because of gender stereotyping, relying on the Supreme Court’s 1989 Title VII ruling, Price Waterhouse v. Hopkins, 490 U.S. 228, where the court held that discriminating against a woman for her failure to conform to the employer’s stereotyped views of how women should act and present themselves in a business setting could violate the statute.

Judge Moore noted that in the Etsitty opinion the 10th Circuit had “cited with approval” to Smith v. City of Salem, 378 F.3d 566 (6th Circuit 2004), a decision upholding a Title VII claim by a transgender woman who was being pressured to quit by the City’s Fire Department after confiding in a supervisor that she was transitioning.  The court held that the fact that the plaintiff is a “transsexual” was “not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”  In a 2014 decision, McBride v. Peak Wellness Center, 688 F.3d 698, the 10th Circuit has, according to Judge Moore, “implicitly recognized that claims based on failure to conform to stereotypical gender norms may be viable.”

This was enough for Moore. “In this case,” he wrote, “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,” he continued, finding that “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.”

Moore also stated agreement with the Smiths’ argument that “discrimination against a transgender (here, Rachel) because of her gender-nonconformity is sex discrimination. In other words,” he explained, “that discrimination based on applying gender stereotypes to someone who was assigned a certain sex (here, male) at birth, constitutes discrimination because of sex.”  So long as the argument was phrased in terms of stereotyping, Moore believed that he could rule on the claim under the FHA.  However, he cautioned, “To the extent the Smiths argue something more – that the FHA has been violated based on sex stereotyping as they have been discriminated against solely because of Rachel’s status as transgender, and that the Smiths were discriminated against because of their sexual orientation or identity – the Court declines to do so.”  Thus, the court did not hold, as such, that discrimination because sexual orientation or gender violate the FHA’s ban on sex discrimination, but embraced such a broad view of sex stereotyping that the opinion appears to have much the same effect.

As to the motion for summary judgment, Moore concluded that the “undisputed material facts” show that Avanti violated the FHA, as her reference to the Smiths’ “unique relationship” and their family’s “uniqueness” showed reliance on stereotypes “of to or with whom a woman (or a man) should be attracted, should marry, or should have a family.”

As to the “familial status” discrimination claim, there is clear precedent that it violates the FHA for a landlord to have an “adults only” policy or to discriminate against prospective tenants because they have children, so that was a clear winner. Judge Moore also found it relatively simple to rule in the Smiths’ favor on their state law claims, since Colorado explicitly forbids housing discrimination because of sexual orientation (which is defined to include “transgender status”) as well as familial status.  The next stage of the lawsuit will be to determine the damages or relief that the court might order.

The Smiths are represented by Karen Lee Loewy and Omar Francisco Gonzalez-Pagan, from Lambda Legal’s New York office, and cooperating attorneys from Holland & Hart LLP’s Denver office: Matthew Paul Castelli and Benjamin Nichols Simler.

Lambda Legal’s Wisconsin Birth Certificate Litigation Hits Speed Bump

Posted on: January 1st, 2016 by Art Leonard No Comments

Lambda Legal’s federal lawsuit seeking to compel Wisconsin officials to issue appropriate birth certificates for children of married same-sex couples hit a speed bump on December 16 when U.S. District Judge Barbara B. Crabb denied Lambda’s motion for class certification and summary judgment in Torres v. Rhoades, 2015 U.S. Dist. LEXIS 169965, 2015 WL 9304584 (W.D. Wis.).  Lambda sued on behalf of plaintiffs Chelsea Torres and Jessamy Torres and their minor child, A.T.   A.T. was born as a result of donor insemination performed in compliance with Wisconsin statutes, and the women were legally married before A.T. was born, but Wisconsin officials refused to issue a birth certificate listing both women as mothers of A.T., asserting that the non-birth mother would have to go through an adoption proceeding to get her name on an amended birth certificate.

Under Wisconsin statutes a birth certificate lists the woman who gave birth to the child and her legal husband.  Furthermore, the statute governing birth certificates provides that if a child was conceived through donor insemination in compliance with a Wisconsin statute that requires that a licensed physician supervise the process and that the woman’s husband give written consent to the procedure, then the wife and husband are both listed on the birth certificate.  If the husband does not give written consent, he is not listed on the birth certificate, even though he is married to the birth mother.  Furthermore, if the donor insemination is not carried out in compliance with the statute, only the birth mother is listed on the birth certificate, even though she is married.  Chelsea and Jessamy Torres complied with the statute, having a doctor supervise the insemination procedure and the non-birth mother giving written consent, with the sperm donor waiving all claim to parental rights.

The motion seeking class certification proposed a class consisting of “all same-sex couples who legally married in Wisconsin or in another jurisdiction, at least one member of whom gave birth to a child or children in Wisconsin on or after June 6, 2014, and who request birth certificates for such children listing both spouses as parents, regardless of whether they have already received birth certificates listing only one spouse as a parent; and all children born to such couples on or after June 6, 2014.”  The date is significant because it is the date on which Judge Crabb declared Wisconsin’s ban on same-sex marriage unconstitutional in Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014).  Wisconsin Department of Health Secretary Kitty Rhoades opposed the proposed class by arguing that the proposed class representatives, the Torres couple and their child, could not properly represent the interests of all proposed class members, since the class as described would take in people who conceived their children in different ways, and thus would present different issues regarding entitlement to placing a name on a birth certificate as a parent.

The proposed class would not, as a matter of fact, including same-sex male couples, just female couples, but Secretary Rhoades pointed out that women can become pregnant in at least three ways relevant to the issues presented to the court.  A female couple could conceive through donor insemination carried out in compliance with the state’s assisted conception statute, involving supervision by a physician and written consent by the non-birth parent; or, they could conceive through donor insemination that does not comply with the statute; or, in presumably the rare case, they could conceive by the birth mother having sex with a man to whom she presumably was not married.  (This is not so far-fetched; there is at least one case from another state in which a woman became pregnant through sex with a male friend while her relationship with her same-sex partner was “on hiatus” and the women resumed their partnership before the child was born. . .)  Rhoades argued that because the proposed class representatives fit into only the first category, they could not represent the second and third categories, whose cases would present different legal issues when viewed from the perspective of equal protection of the laws and due process under the 14th Amendment, which were the constitutional grounds cited by Lambda for the lawsuit.

Judge Crabb agreed with Rhoades that “subclasses” would be needed and new plaintiffs would have to be joined as class representatives in order to give the court jurisdiction to deal with the birth certificate issues that would be raised by the other two classes.  “The general rule in this circuit is that a plaintiff cannot be an adequate representative of the class if she is not subject to the same defenses as other members of the class, at least if the defense is central to the litigation,” wrote Judge Crabb.  In this case, while the state is essentially conceding that after Obergefell v. Hodges it doesn’t have a good defense to the claims of married same-sex couples who complied with the donor insemination statute, it could oppose the claims of those who didn’t comply, or of those who conceived by a member of the couple having sexual intercourse with a man to whom she was not married.  Judge Crabb found that the circuit’s rule applies to this case.

She agreed with Lambda that the claims regarding birth certificates would be appropriate for class treatment, but she could not certify Lambda’s plaintiff couple and their child as representatives for the broad class described in the motion.  In light of her decision that the proposed class could not be certified, Judge Crabb held that it would be premature to grant Lambda’s motion for summary judgment.  She pointed out that the state has actually conceded that the first subclass of same-sex couples who followed the requirements of the donor insemination statute should be entitled to get both names on the birth certificate without the non-birth mother going through an adoption, and had offered to amend the birth certificates of all couples who had complied with that statute, but plaintiffs had declined the offer in order to maintain this class action.

Judge Crabb also opined that Lambda’s request for a declaration that various Wisconsin statutes unconstitutionally discriminate against same-sex married couples seemed overbroad in light of the subject matter of the litigation.  Lambda was attacking not only the birth certificate statute and the donor insemination statute to the extent that their application discriminates against same-sex couples, but also the paternal presumption statute, for failing to address the legal status of the non-birth parent in a same-sex married couple.  That statute as worded provides that “a man is presumed to be the natural father of a child” who is born to his wife, but that the presumption could be rebutted by showing through genetic testing that another man is the actual natural father of the child.  Crabb commented, “Plaintiffs do not explain how that presumption relates to birth certificates, which is the only issue plaintiffs raise in this case.”  She pointed out that the paternal presumption statute “seems to involve issues that arise later,” such as obligations for child support or inheritance rights.  “Plaintiffs do not include any allegations in their amended complaint showing how they are being injured by [the paternal presumption statute], which raises the question whether they have standing to challenge that statute.  Standing is a jurisdictional issue, so I cannot ignore it even if defendant does not raise an objection.  Thus, if plaintiffs plan to continue to seek a ruling regarding the constitutionality of [the paternal presumption statute], they will have to show that one or more plaintiffs meet all the requirements for standing.”

The judge specified that her ruling denying Lambda’s motions was “without prejudice,” and she gave Lambda until February 1, 2016, to file a new class certification motion.  Either they will have to narrow their proposed class to same-sex married couples who complied with the donor insemination statute, or they will have to recruit additional plaintiffs and seek certification of several subclasses.  In addition, if they want to attack the paternal presumption statute as part of this case, they will need to recruit plaintiffs who can show some sort of concrete harm due to the failure to that statute to take on a gender-neutral parental presumption approach that would apply to same-sex couples.  In light of these rulings, Judge Crabb also struck the contemplated trial date of February 10, 2016, observing that after a new class certification is ruled upon, the court will set a new trial date, but that if the plaintiffs do not file a renewed class certification by February 1, the court would set a new trial date with the case proceeding on behalf of the named plaintiffs without class certification (in which case, by implication, the court’s ruling on the merits would only deal with the claims of married same-sex couples who complied with the donor insemination statute).

In an earlier ruling on December 16, 2015 U.S. Dist. LEXIS 167977, Judge Crabb pointed out that ordinarily a summary judgment motion would not be ruled upon in a class action case until after the class is certified and notice is sent to class members so they can opt out or opt in as the case may be.  “Presumably the parties do not believe that the class is entitled to notice in this case because neither side mentions notice in their filings,” wrote Crabb, but she pointed out that the Federal Rules of Civil Procedure provide that notice should be given “to enable class members to challenge the class representatives or otherwise intervene in the suit, rather than to allow them to opt out.”  Crabb asserted that it was difficult for her to decide whether notice should be required in this case without any input from the parties, so she gave the parties until December 30, 2015, “to show cause why the class should not receive notice in the event that the court grants the motion for class certification.  In addition, the parties should address the question of how notice would be provided if that is what the court orders.”  Judge Crabb’s December 21 ruling mentioned the December 16 order in passing, but did not indicate whether the time for response would be extended in light of the denial of class certification.

Counsel for plaintiffs include Camilla Taylor, Christopher Clark and Kyle Palazzolo from Lambda’s Chicago office, and local counsel Clearesia Lovell-Lepak and Tamara Beth Packard, both of Madison, Wisconsin.