DISCRIMINATION IN HOUSING
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.1
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.2 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.3 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 January 2011, after receiving an unprecedented level of LGBT-discrimination housing complaints as a result of the guidance, HUD proposed a new rule that would prohibit discrimination on the basis of sexual orientation or gender identity in several of the federal agency's programs. Most notably, the proposed rules would 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.4 While the new guidance and proposed new rule is a step in the right direction, gender identity and sexual orientation are still not explicitly protected under the Fair Housing Act.
However, in San Francisco5 and Oakland,6 landlords are expressly prohibited from discriminating based on gender identity. If transgender-specific discrimination occurs outside of these two cities, an individual is still protected under California state law. The Fair Employment and Housing Act (FEHA), asserts that “the opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, disability … is hereby recognized as and declared to be a civil right.” In 2003, the Gender Nondiscrimination Bill (AB 196) amended FEHA to explicitly protect transgender people by adding a gender identity specification to the definition of “sex.”7 Relief under FEHA, then, is available to those who can make a claim for discrimination based on sex. However, it is important to note that for a claim to succeed, one must be able to prove that the discrimination was based on sex. Landlords often evict or refuse to rent to transgender people but cite a legally valid reason or no reason at all, rather than explicitly breaking the law.
Individuals outside of California should research their state's housing discrimination laws. In all states, no matter what the law, landlords frequently utilize discriminatory practices and claim to be basing their action on legally acceptable reasons. It can be very difficult to bring a discrimination claim against a landlord, so collecting and documenting evidence that the discrimination was explicitly related to gender identity is very important. Whenever possible, ask for things in writing, especially if a landlord explicitly tells you that something is based on gender identity.
The Unruh Civil Rights Act provides further protection for transgender people in California. The Act ensures that “all persons within the jurisdiction of [California] are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”8 While FEHA alone is broad enough to protect people in any type of rental or real property purchase situation, Unruh's scope can reach just slightly further, as it protects transgender people in business accommodations. A transgender person can argue a violation of Unruh based on disability and sex, as transgender people are not expressly excluded from either definition and are included by statute (AB 196) under discrimination based on sex.
The main distinction between FEHA and Unruh as it has been interpreted by courts is effectual versus intentional discrimination. FEHA will recognize as violations practices that have a discriminatory effect, while Unruh is narrower, requiring that violations are intentional in order to be actionable. This can make a claim exceptionally difficult to prove, and heightens the importance of documentation and other evidence that discrimination is deliberate.
It is important to note that the local and state laws outlined above cover not only standard landlord-tenant interaction, but also issues in public housing, with Section 8 vouchers, at homeless shelters, and in single room occupancy residences (SROs). At this time, federal law is less favorable than California state law for transgender persons seeking relief from discrimination. Title VIII of the Civil Rights Act of 1964 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...”9 “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. Title VIII can be used by victims of discrimination to provide relief from discrimination. As it currently reads, however, the language explicitly excludes transvestites from this protection. It could be argued that a transgender person is not a transvestite and, therefore, is protected, but it is unclear how a court would rule on this issue.
If you are a victim of housing discrimination, you may have several legal remedies available to you, 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.10
Discrimination can take many forms. There are times that landlords may treat tenants badly or try to force them to move out by not making necessary repairs to rental units. However, landlords have a legal responsibility to ensure that the rental unit is fit to live in, or “habitable.”11“ Habitable” means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety.12 This does not mean that landlords always have a legal duty to repair just because they are violating codes. Under Green v. Superior Court, all residential leases and rental agreements in California have an implied warranty of habitability making it the legal duty of a landlord to repair conditions that seriously affect the rental unit’s habitability. On the other hand, landlords are not responsible for repairing damage caused by tenants, their families, guests, or pets.13 There are instances where a renter may be able to withhold a portion of rent from the landlord in order to make legitimate repairs that are necessary to make a rental unit “habitable” under the implied warranty of habitability. Transgender tenants and their advocates can find more information on habitability and landlord-tenant responsibilities for repairs at http://www.dca.ca.gov/publications/landlordbook/problems.shtml.
If a landlord tries to evict a tenant or take some other action against a tenant within six months after the tenant has done any of the following, the law assumes the landlord was motivated by retaliation:14
• Using the implied warranty of habitability’s repair and deduct remedy, or the tenant telling the landlord that they are intending to use the repair and deduct remedy;
• Complaining about the condition of the unit to the landlord or to an appropriate public agency after having given the landlord notice and a sufficient amount of time to make necessary repairs or fix the problem;
• Filing a lawsuit against the landlord based on the condition of the rental property; or
• Causing a public agency to inspect the unit and/or issue a citation to the landlord.
Moreover, landlords, managing agents, real estate brokers, or salespersons are in violation of the California Fair Employment and Housing Act for harassing, evicting, or otherwise discriminating against a transgender person in the sale or renting of property when the “dominate purpose” is to retaliate against a person for opposing unlawful practices or aiding or encouraging a person protected by the Act to exercise their rights.15
Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 846 (2005). ↩
HUD Issues Guidance On LGBT Housing Discrimination Complaints, U.S. Department of Housing and Urban Development, Last visited August 1, 2012. ↩
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. 76, No. 15, January 24, 2011, Last visited August 1, 2012. ↩
San Francisco Police Code, § Section 3303. ↩
Oakland Mun. Code, Ch. 9.44. ↩
Cal. Assem. Bill No. 196 (2003). ↩
Cal. Civ. Code, § 51. ↩
42 U.S.C. § 3604. ↩
Green v. Superior Court, 10 Cal.3d 616, 637-638 (1974); Cal. Civ. Code § 1941, 1941.1. ↩
Cal. Civ. Code, § 1929, 1941.2. ↩
Cal. Civ. Code, § 1942.5. ↩
Gov. Code, § 12955(f), 12955.7. ↩