Document Type

Article

Publication Date

3-2021

Abstract

On June 15, 2020, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, Georgia, ruling by a vote of 6-3 that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination. The majority held that the statute's prohibition against discrimination in employment "because of ... sex" necessarily applies to discrimination based on sexual orientation and transgender identity.

This decision will undoubtedly have ramifications reaching beyond the employment context because many other federal statutes contain language similar to that in Title VII. In particular, the federal Fair Housing Act (FHA), which has identical language prohibiting discrimination in housing "because of . .. sex," should also now be interpreted to prohibit discrimination based on sexual orientation and gender identity. This is an obvious next step given the similar language, structure, and purpose of both statutes, and the courts' long-standing tendency to use Title VII cases to guide their interpretation of the FHA. This would also be a welcome development for housing equity, considering the significant discrimination that gay, lesbian, and transgender individuals experience in housing and the dearth of legal protections in place for them.

Part I of this Article outlines the significant level of discrimination against LGBTQ individuals in the housing market. The FHA does not specify that sexual orientation and gender identity are protected characteristics, and there is an insufficient patchwork of state statutory and administrative protections. This is similar to the employment context, where Congress's failure to include explicit protections for LGTBQ individuals in Title VII left the heavy-lifting to the courts, which gradually developed doctrines to read such protections back into the statute.

Part II reviews the courts' evolving treatment of sexual orientation and gender identity under Title VII and the smaller number of cases following the same pattern in the FHA. In particular, those courts which upheld plaintiffs' claims relied on three types of arguments: (1) the argument that LGBTQ individuals defy sex-role stereotypes, and that sex-role stereotyping constitutes discrimination "based on sex," (2) a textual "comparative argument," which looks in many ways like a causation analysis, and (3) a related associational argument. This Part concludes with a discussion of the Supreme Court's opinion in Bostock, which relied heavily on the comparative argument.

Part III analyzes how courts use Title VII precedent for guidance in fair housing cases. It argues that the propriety of this practice will depend on whether there are any relevant differences between the employment and housing contexts. In this case, there are no significant contextual differences, and thus Bostock's interpretation of "because of sex" should apply equally to sexual orientation and gender identity discrimination claims brought under the FHA. Indeed, as with Title VII, there is strong precedent in favor of broadly interpreting the FHA to cover claims and plaintiffs that Congress may not have originally intended to cover.

Part IV examines the possible mixed motives issue. It discusses the potential for the "because of sex" causation argument to implicate mixed motives. It also examines the potential for the differences between the two statutes to complicate attempts to apply Bostock to the FHA. This is not a problem, however, because Bostock's reasoning does not in fact implicate mixed motives at all. Thus, there is no reason not to apply Bostock's holding to the FHA.

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