Colorado Fair Housing Act ruling mirrors decision by Seventh Circuit in breakthrough sex discrimination case

By Kacie Whaley | Jun 5, 2017

An April decision by a Colorado U.S. district court judge extended the Fair Housing Act (FHA) to include prohibiting discrimination against gays, lesbians and transgender people, mirroring a landmark ruling in Chicago's Seventh Circuit Court of Appeals regarding discrimination.

The April ruling from Colorado U.S. District Court Judge Raymond Moore has opened the door for the current FHA guidelines to be challenged in future cases. The FHA prohibits discriminating against those renting or purchasing a home based on race, color, religion, disability, sex, familial status or national origin. The federal act does not explicitly bar discrimination based on sexual orientation.

The decision in Colorado came just days after a similar landmark ruling in the Seventh Circuit Court of Appeals in Chicago. In Hively vs. Ivy Tech, a panel voted 8-3 that an Indiana college discriminated against an openly gay professor on grounds of Title VII of the Civil Rights Act. 

Along with Hively vs. Ivy Tech, the decision in Colorado has been received by some observers as another breakthrough in the fight for LGBTQ rights. 

Amanda Biondolino, a law associate at SmithAmundsen who specializes in housing discrimination, points out that the litigation is liable to be used to support future similar housing discrimination cases.

"This is significant in that a judge actually ruled that as a matter law, based on the facts of that case, sex discrimination under the Fair Housing Act applied to a gay and transgender individual," Biondolino told the Cook County Record. "It is what we call 'persuasive' authority, and parties may rely on it to support their cases, and other courts may rely on it as well as support for their decisions."

The case involved Rachel Smith, a transgender woman, and her wife Tonya Smith, who sought to rent a house from landlord Deepika Avanti. The couple have two children together and were looking to move their family to a townhouse in the Boulder area.

According to court documents, Avanti said he was hesitant to rent to the couple because he worried about the noise level their children would make, which is familial status discrimination and violates the FHA. Then, Avanti said the Smiths' "unique relationship" would be the focal point of the neighborhood and ruin the low profile the area maintains.

The Smiths sued Avanti for discrimination based on sex and familial status. The couple claimed they were discriminated against due to "gender stereotyping." This claim was first recognized by the U.S. Supreme Court in a 1989 case in which a woman alleged she was denied a partnership at a firm because her appearance and mannerisms did not conform to female gender norms.

The Smiths argued they were discriminated against because they did not fit typical gender norms, which included their choice in a sexual partner. Judge Moore agreed, stating that “[s]uch stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.” The judge added that discrimination based on being transgender was also present in the case and violated the Colorado Anti–Discrimination Act. The Smiths were awarded a summary judgment on their state and FHA claims.

Although the district court chose to extend the FHA in this case, and that finding could change how the act is enforced in certain cases, the ruling doesn't set anything in stone when it comes to higher courts. Biondolino points out that "caselaw flows down," and U.S. district courts are at the lowest of three levels of the federal system.

But Biondolino suggests housing providers should learn from this decision to stay away from discriminating against potential renters or home buyers and use safe, non-discriminatory measures when dealing with clients.

"I would advise any housing provider against making any housing-related decision or statements based on sexual orientation or gender identity," Biondolino said. "A housing provider should base their decisions to rent or sell to individuals on legitimate, non-discriminatory reasons (credit history, tenant history, income requirements) that are uniformly applied to all applicants across the board."

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SmithAmundsen LLC - St. Louis U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the District of Colorado

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