The U.S. Department of Housing and Urban Development (HUD) has announced proposed new regulations to prohibit discrimination based on sexual orientation or gender identity in programs sponsored by or financed by HUD. Alex discussed them in a post this morning.
On a media conference call with HUD yesterday, HUD Secretary Shaun Donovan mentioned a sad case involving public housing from last July, in which Michelle DeShane wanted to add her trans male partner to her housing voucher. The local housing authority said no, saying "I don't think we take your kind here." They were referred to another housing authority because "they accept everyone, even Martians."
I also wonder to what extent the rule would prohibit inquiry into biological or anatomical sex. I myself have run into this problem. I asked about it on the media conference call with HUD yesterday.
NCTE made an interesting public statement yesterday, in which it noted that a forthcoming public report, co-sponsored by NCTE and the Task Force, was cited as evidence demonstrating the dire need for housing protections for the transgender community. Glad to see that NCTE and the Task Force are helping to shape good policies.
This is another example of how the Obama Administration has moved forward on the administrative front, a more accessible legal system than the legislative, which is dominated, now more than ever, by conservative philosophies.
The rule that jumped out at me, as a recent home owner with an FHA mortgage, is the one that would prohibit lenders from using sexual orientation or gender identity as a basis to determine a borrower's eligibility for Federal Housing Administration-insured mortgage financing. This also immediately brings to mind the case of Rosa v. Park West Bank, a GLAD-litigated case based on the federal sex discrimination laws, wherein Lucas Rosa--a transgender person who appears female but was assigned the sex designation of male at birth--who was told when applying for a bank loan to go home and change to appear more traditionally masculine. That case, decided by the First Circuit Court of Appeals, covers New England, but is not binding precedent in other areas of the country. Under the new HUD rule, banks that are FHA lenders would not be permitted to engage in such behavior. I'm not certain whether this rule would take effect where a non-FHA loan is involved, however.
The rule also covers public housing and rental vouchers (called Housing Choice vouchers).
In regard to my question about whether inquiry could be made into biological or anatomical sex, I received a fairly general answer, noting that inquiry into gender identity would be prohibited. But the rub in such situations is that some courts have totally misunderstood this issue, improperly ruling that inquiry into "biological gender" is permissible because it is not "gender identity." Of course, that makes no sense whatsoever. The whole point of gender identity non-discrimination is that one cannot use biological or anatomical issues to deny non-traditional gender identity.
I hope that the regulations will be sufficiently clear that transgender people will be protected from such inquiries as well.
For those interested in this issue, here's a good law review article from the Columbia Journal of Law and Social Problems on the subject, written by Daniella Lichtman Esses, entitled Afraid to Be Myself, Even at Home: A Transgender Cause of Action Under the Fair Housing Act