OVERVIEW: HOUSING DISCRIMINATION
Housing discrimination against transgender and gender-non conforming persons is a severe problem. In the National Transgender Discrimination Survey, 19 percent of the 6,450 respondents reported having been refused a home or apartment and 11 percent reported being evicted because of their gender identity/expression.1 Most notably, 19 percent of respondents also reported experiencing homelessness as a result of their gender identity/expression with the majority of them reporting either harassment, difficulty in access, or sexual assault when attempting to access homeless shelters. Transgender persons had less than half the national rate of home ownership: 32% reported owning their home compared to 67% of the general population. Between 20 percent and 40 percent of homeless youth and runaways in the United States identify themselves as lesbian, gay, bisexual, transgender, queer, or questioning (LGBTQ).2
The most common forms of housing discrimination against transgender people occur when they are denied housing, discriminated against in the terms or conditions available to other tenants, or harassed by a landlord or fellow tenant. Often, couples with one or more transgender partner(s) are discriminated against when acting as potential home buyers or renters. However, a landlord cannot apply rules and policies to unmarried couples who are registered domestic partners that do not apply to married couples.3
If you are a victim of housing discrimination, you may have several legal remedies available to you under federal, state, or local law, including:
- Recovery of out-of-pocket losses;
- An injunction prohibiting the unlawful, discriminatory practice;
- Access to the housing that the landlord denied you;
- Monetary damages for emotional distress;
- Civil penalties or punitive damages; and/or
- Attorney’s fees.4
Protection Under the Federal Fair Housing Act
Recently, some efforts have been made at the federal level to protect transgender individuals from housing discrimination. The Fair Housing Act prohibits discrimination in rental, sales, and lending on the basis of race, color, national origin, religion, gender, disability, and familial status.5 In July 2010, the U.S. Department of Housing and Urban Development (HUD) issued new guidance to treat gender identity discrimination as gender discrimination under the Fair Housing Act. HUD instructed staff to inform individuals filing complaints about relevant state and local agencies that have LGBT-inclusive anti-discrimination laws.6 Housing discrimination against someone who is transgender could violate the FHA’s prohibition against gender discrimination. Under the new guidance, HUD can retain its jurisdiction over complaints filed by LGBT individuals or families but also jointly investigate or refer matters to those state, district, and local governments offering other legal protections.
In February 2012, after receiving an unprecedented level of LGBT-discrimination housing complaints as a result of the guidance, HUD finalized a new rule that prohibits discrimination on the basis of sexual orientation or gender identity in several of the federal agency's programs. Most notably, the new rules prohibit lenders from using sexual orientation or gender identity as a basis to determine a borrower's eligibility for Federal Housing Administration (FHA) insured mortgage financing, allow all families regardless of sexual orientation and gender identity to participate in HUD programs, and prohibit owners and operators of HUD-assisted housing from inquiring about the sexual orientation or gender identity of an applicant.7 While the new guidance and rules are a step in the right direction, gender identity and sexual orientation are still not explicitly protected under the Fair Housing Act.
At this time, federal law is still less favorable overall than California state law for transgender persons seeking relief from discrimination. The Fair Housing Act makes it unlawful “to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap...”8 “Handicap” is defined as “a physical or mental impairment which substantially limits one or more of such person's major life activities.” As it relates to other statutes, some courts have interpreted people diagnosed with Gender Identity Disorder as falling into this category of handicapped or disabled persons. As it currently reads, however, the language under the Fair Housing Act still explicitly excludes what it calls “transvestites” from this protection.9 But as of 2013, at least one court has upheld the validity of a claim for gender identity discrimination under the Fair Housing Act, finding that a plaintiff could state a claim under the act when she was denied public accommodations in a recovery home for women because the defendant identified her as a “woman with male genitalia.”10 With the new HUD guidelines in place, more courts may begin to recognize gender identity as a protected classification under the Fair Housing Act.
Injustice at Every Turn: A Report of the National Transgender Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011, http://endtransdiscrimination.org/PDFs/NTDS_Exec_Summary.pdf, Last visited May 27, 2014. ↩
Rudy Estrada and Jody Marksamer, Lesbian, Gay, Bisexual, and Transgender Young People in State Custody: Making the Child Welfare and Juvenile Justice Systems Safe for All Youth Through Litigation, Advocacy and Education, Temple L. Rev., Vol. 7, Issue 2 (Summer 2006), http://www.nclrights.org/legal-help-resources/resource/lesbian-gay-bisexual-and-transgender-young-people-in-state-custody-making-the-child-welfare-and-juvenile-justice-systems-safe-for-all-youth-through-litigation-advocacy-and-education/, Last visited May 27, 2014. ↩
Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 846 (2005). ↩
Unlawful Discrimination, California Department of Consumer Affairs, http://www.dca.ca.gov/publications/landlordbook/discrimination.shtml, Last visited May 27, 2014. ↩
HUD Issues Guidance On LGBT Housing Discrimination Complaints, U.S. Department of Housing and Urban Development, http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination, Last visited May 27, 2014. ↩
Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity, U.S. Department of Housing and Urban Development, Federal Register, Vol. 77, No. 23, February 3, 2012, http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf. Last visited May 27, 2014. ↩
42 U.S.C. § 3604. ↩
42 U.S.C. § 3602 (note). ↩
Kaeo-Tomaselli v. Butts, Civil No. 11-00670 LEK-BMK, 2012 U.S. Dist. LEXIS 170439 at *4, *8 (D. Haw. Nov. 30, 2012). ↩