Federal Judge Affirms Sexual Orientation Protections In Housing, But With Limits

CREDIT: Shutterstock/Mark Van Scyoc

A federal judge in Alabama has dismissed a discrimination complaint against the Department of Housing and Urban Development (HUD), but in doing so, outlined how exactly housing discrimination on the basis of sexual orientation might be prohibited under federal law.

It’s unclear exactly what case James Earl Thomas made when he filed his original discrimination complaint against Aletheia House, a federally subsidized housing facility in Birmingham that provides various social services. When his complaint went unaddressed, he filed suit against the HUD officials, bringing it to federal court. The exact details of his complaint are unknown, but as District Judge William M. Acker, Jr. describes them in his ruling, Thomas said he was refused service “because he is not gay” and that “he was discriminated against based on his conformity to male stereotypes, such as stereotypes regarding cooking and buying furniture.”

The HUD officials Thomas had sued had responded that they couldn’t process his complaint because they did not have jurisdiction “to investigate and prosecute complaints raising allegations of discrimination based on sexual orientation.” The Fair Housing Act (FHA) offers protections on the basis of “sex,” but not explicitly “sexual orientation,” they argued.

This prompted Acker to take up the question if any sexual orientation complaints could be considered under the FHA, and he actually agrees that they could. He acknowledges that in 2012, HUD issued the Equal Access Rule, expanding protections based on sexual orientation and gender identity within the constraints of the law’s “sex” protections. Specifically, this step opened up two grounds for such a complaint: “discrimination because of nonconformity with gender stereotypes” and “discrimination in the form of sexual harassment.”

Acker affirms this interpretation of the law as a “permissible reading of ‘sex.'” “These type of expanded protections for such individuals under the FHA is [sic] 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.”

Unfortunately for Thomas, his claim did not meet this criteria. “Thomas does not petition under a theory of gender non-conformity,” Acker writes, “but rather relies on sexual orientation as the sole basis for discrimination separate and independent of gender. In fact, Thomas alleges that he was discriminated against based on his conformity to male stereotypes” — not nonconformity. Thus, “HUD lacks the jurisdiction for respondents to act upon them.”

Acker’s ruling is a reminder that LGBT people can find protection under the law for housing discrimination. A 2013 HUD report found that there is widespread housing discrimination against same-sex couples, and the 2012 National Transgender Discrimination Survey found similar mistreatment for transgender people.

Thomas’ complaint may have been frivolous, but the fact that Acker could not fully consider it highlights the ongoing need for explicit federal protections based on sexual orientation and gender identity.