Both sexual orientation and gender identity discrimination are forms of sex discrimination

Although decided under Title VII (employment discrimination) rather than the Fair Housing Act, the Supreme Court’s 5-4 ruling in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) that both sexual orientation and gender identity discrimination are forms of sex discrimination is quite likely to be extended to the housing context. Justice Gorsuch’s majority opinion focused on a textual reading of the statute and the so-called comparative or but for theory to the effect that an employer who fires a man for being attracted to other men but would not do so if he were a woman has necessarily discriminated against that men just because of his sex. It does not matter if his motives were related to his views of homosexuality or same-sex marriage or religion or anything else.

 

While this argument is likely to extend to claims under the Fair Housing Act, 42 USC §3601 et seq., it will not extend to housing that is exempt from the Fair Housing Act. Those claims would have to be brought under state law. Some states have no statutes prohibiting sex discrimination in housing while those that do will need to be interpreted by state supreme courts, who may or may not agree with the Bostock analysis. Up in the air, as well, are potential claims under state religious freedom restoration acts that might be the basis for exemptions for some landlords or sellers that would enable them to engage in otherwise discriminatory refusals to serve.

 

And while the Bostock ruling likely will be extended to federal fair housing law, there is no general federal statute prohibiting sex discrimination in public accommodations and, since half the states prohibit sex discrimination but not sexual orientation or gender identity discriminatory, the supreme courts in those states (or the legislatures) will be the ones to determine whether their statutes extend to LGBTQ persons.