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 June 16 in Thomas v. Osegueda, 2015 U.S. Dist. LEXIS 77627, 2015 WL 3751994 (N.D. Alabama), rejected the argument that the court would not have jurisdiction of any sexual orientation discrimination claim under the FHA.
James Earl Thomas filed suit against Carlos Osegueda, a regional director for H.U.D., and Christian Newsome, a claims investigator, for refusing to process his discrimination claim. Judge Acker’s decision says little about the nature of the underlying claim, other than to state 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 was undoubtedly an attempt to shoehorn his claim into the sex stereotyping theory, under which courts construing other federal sex discrimination laws have found some basis for extending protection to sexual orientation discrimination litigants.
Thomas filed a petition seeking a writ of mandamus, a court order directing Osegueda and Newsome to process his claim. On January 26, Acker issued a memorandum opinion granting the petition and ordering Osegueda and Newsome to respond with an explanation of why a hearing on the matter was not required. They responded on March 13, asking Judge Acker to reconsider his opinion and to dismiss Thomas’s petition for lack of jurisdiction, arguing that the FHA “does not give” the agency “jurisdiction to investigate and prosecute complaints raising allegations of discrimination based on sexual orientation.” This required Acker to get into the question whether the FHA bans sexual orientation discrimination.
He pointed out that in the past courts had routinely dismissed sexual orientation discrimination claims under federal sex discrimination statutes, but that the Department of Housing and Urban Development (HUD), the enforcing agency for the FHA, “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.” Although Congress has never amended any of the federal sex discrimination laws to explicitly add “sexual orientation” to the forbidden grounds for discrimination, “HUD has taken an increasingly expansive view of its delegated authority under the FHA relating to discrimination based on sexual orientation,” Acker wrote.
HUD issued a guidance document in 2010 which stated 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].” On February 3, 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.’ While the new regulation made various minor regulatory revisions to effectuate the rule’s broader policy goal, 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.'” In explaining the coverage for sexual orientation, the agency said, “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.” HUD also published an “interpretive document” on August 20, 2014, giving 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.
“Given these recent agency actions broadly interpreting the jurisdictional scope of HUD acting under the FHA based on sexual orientation,” wrote Acker, he would have to determine whether “HUD’s interpretation of its authority squares with the statutory language of the FHA.” 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 by the Supreme Court in 1989 in the case of Price Waterhouse v. Hopkins, where a masculine-acting woman was challenging an accounting firm’s refusal to make her a partner. Since then, and most emphatically since President Obama took office in 2009, federal agencies have been advancing the sex stereotyping theory to find a basis for protecting gay and transgender people from discrimination. 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,” he continued, “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 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. “Even under HUD’s expanded interpretation of the FHA for gender stereotyping, these allegations are outside the scope of the FHA’s ‘sex’ discrimination protection and therefore HUD lacks the jurisdiction for respondents to act upon them.”
There is a certain illogic to this decision. Surely, if a man suffers discrimination because he conforms to male stereotypes, wouldn’t that be a form of sex discrimination? But, as Judge Acker pointed out, Thomas, who was representing himself in this case, insisted that he was suffering discrimination because “he is not gay,” and thus was claiming sexual orientation discrimination, not sex discrimination.
Turning briefly to a possible claim under the Equal Access Rule, Acker pointed out that the two named defendants did not have authority to accept and investigate discrimination claims under that rule, which applies to recipients of federal funding such as Aletheia House and is administered by a different office of the agency. He observed that HUD had forwarded Thomas’s complaint to the relevant agency, since his charged involved a federally-assisted housing program, and since that office had not yet rejected his claim, a care for relief against a refusal to investigate would be premature.