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were living with their two children in rental housing that they had to vacate because the building was being sold and withdrawn from the rental market.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.Tags: Benjamin Nichols Simler, Colorado Anti-Discrimination Act, Deepika Avanti, Federal Fair Housing Act, gender identity discrimination, Gold Hill Colorado, Housing Discrimination, Karen Lee Loewy, Lambda Legal, Lambda Legal Defense & Education Fund, Matthew Paul Castelli, Omar Francisco Gonzalez-Pagan, Rachel Smith, residential housing discrimination, sex discrimination, sexual orientation discrimination, Smith v. Avanti, Tonya Smith, transgender, transsexual, U.S. District Judge Raymond P. Moore