The Office of Fair Housing and Equal Opportunity (“FHEO”) has a duty to investigate sex-based discrimination in housing. In accordance with recent Supreme Court precedent—which held that Title VII’s prohibition on “sex” discrimination necessarily includes discrimination on the basis of gender identity and sexual orientation—FHEO broadened its definition of sex-based discrimination in an internal memorandum published February 11, 2021. This memorandum directed officers to investigate discrimination in housing based on gender identity and sexual orientation. The change unnerved a private Christian college, College of the Ozarks, located in Missouri. Fearing that this internal memorandum threatened its ability to place students in dorms based on their biological sex, the school sued the U.S. Department of Housing and Urban Development (“HUD”) and the Biden administration, claiming its constitutional rights were abridged. The district court found, and the Eighth Circuit affirmed, that College of the Ozarks lacked standing to bring the suit against the defendants.
C. Claire Hausman,
“The sword has not yet fallen”: Is Administrative Guidance Jeopardizing Constitutional Rights?,
88 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol88/iss2/12