A new federal lawsuit filed this week could extend into the area of housing the notion that anti-LGBT bias constitutes gender discrimination under current federal law.
The litigation, which was filed by Lambda Legal, alleges a property owner in Boulder County, Colo., violated the federal Fair Housing Act and the Colorado Anti-Discrimination Act by denying housing to a same-sex couple that has been married for five years.
According to the 19-page complaint, Tonya Smith and Rachel Smith, who is transgender, sought to rent a two-bedroom home in Gold Hill, Colo., along with their children. Although the owner, Deepika Avanti, expressed a willingness to rent the home to the family, that changed after she met the couple in person.
Avanti allegedly wrote to the couple in an email after meeting them and declined to offer the house to them based on the couple’s “uniqueness” and a fear it would jeopardize her standing in the community.
“Your unique relationship would become the town focus, in small towns everyone talks and gossips, all of us would be the most popular subject of town, in this way I could not be a low profile,” Avanti wrote.
Tonya Smith said in a statement Avanti’s decision to refuse housing for the family was “all so stunning and upsetting.”
“We liked Deepika when we first met her, and we left the showing feeling fairly good about things,” Smith said. “When we first heard from her that we were being denied housing, the first response was shock. We were completely dumbfounded that who we are could be the basis of a decision not to allow us to rent from her. It’s wrong, and no one should have to go through what we went through.”
The litigation alleges bias in violation of the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation and transgender status, and the Fair Housing Act. Although the federal law has no explicit prohibition on anti-LGBT discrimination, the litigation contends Avanti discriminated against the couple on the basis of gender, familial status and gender stereotyping.
The lawsuit calls on the court to enjoin Avanti from discriminating on the basis of sex, sexual orientation, transgender status, and/or familial status in the sale, leasing, or rental of housing; complete fair housing training to prevent her from discriminating again; and award damages as a result of violating the law.
The Washington Blade couldn’t reach Avanti to obtain a comment on the lawsuit against her, but she’s quoted in the Boulder Daily Camera as saying she denied the couple housing because they would have been “way too noisy” and not because of sexual orientation or gender identity.
“I’m a psychotherapist. I’m fine with that,” Avanti is quoted as saying.
Handling the case for Lambda Legal are senior attorneys Omar Gonzalez-Pagan and Karen Loewy. Joining them in pro-bono co-counsel is Benjamin Simler of Holland & Hart LLP.
Gonzalez-Pagan said in a statement “what the neighbors will say is no excuse” for discrimination against the Smith family.
“Tonya and Rachel Smith are loving spouses and parents whose ideal home was denied to them because they are a same-sex couple with kids and Rachel is transgender,” Gonzalez-Pagan said. “That’s not just wrong, it is unlawful.”
The litigation is filed as LGBT advocates are experiencing greater success in making the case before the courts that anti-LGBT discrimination is illegal under federal law even without explicit LGBT non-discrimination protections. Just last week, a federal court ruled a lawsuit alleging anti-gay discrimination at Pepperdine University could go forward on the basis that it constituted gender bias under Title IX of the Education Amendments of 1972.
But the lawsuit is likely the first one brought by an LGBT plaintiff alleging gender discrimination in housing, at least in federal law.
Tico Almeida, president of the LGBT group Freedom to Work, commended Lambda Legal for filing the lawsuit and said it represents “a critically important next step” in asserting anti-LGBT discrimination is already prohibited under federal law.
“It’s helpful that President Obama’s Department of Housing & Urban Development has finalized regulations interpreting federal housing laws to allow LGBT claims, and the Obama regulations deserve the highest form of judicial deference — called Chevron deference — from the federal courts,” Almeida added.
Almeida added the LGBT movement should follow a strategy used by the black civil rights movement, which he said for decades has used rental testers to uncover discriminatory landlords who violate the law by turning away qualified renters.
In a 1982 case called Havens Realty Corporation vs. Coleman, the U.S. Supreme Court ruled unanimously in favor of allowing testers and testing organizations to bring federal lawsuits when they uncover rental discrimination.
Gonzalez-Pagan said housing discrimination against the LGBT community is a “pervasive problem” and one that often goes underreported.
“In many instances, LGBT people who are either overtly or subtly discriminated against in housing do not report the discrimination because of their immediate need to find housing or the costs of pursuing a claim,” Gonzalez-Pagan added. “It is important to hold property owners who engage in this kind of discrimination accountable, sending a strong message both to other property owners and to those who have experienced housing discrimination that it is illegal.”