Understanding Sex Discrimination in Housing

The Fair Housing Act (FHA), a federal law that protects tenants against discrimination, includes a list of “protected classes”—that is, groups of people who all share a particular trait. In 1974, “sex” was added to the FHA as a protected class. This means that tenants across the United States can’t be treated differently based on their gender, including a ban on sexual harassment. In recent years, courts have also started to rule that discrimination against people based on their sexual orientation is considered sex-based discrimination and therefore banned by the FHA.

All tenants are protected from sex discrimination, not just women

Although women have more commonly been the plaintiffs in fair housing lawsuits, the FHA’s ban on sex-based discrimination protects all tenants, regardless of gender.¹ In addition, the gender of a landlord, maintenance worker, or other person engaged in sex discrimination doesn’t matter when it comes to bringing a discrimination complaint.

Landlords can’t take greater financial precautions when renting to women

Some landlords commit obvious fair housing violations by turning away women who apply to rent an apartment without a man present in their household. More often, however, landlords discriminate based on sex by making it more expensive for women to rent than men. For example, landlords who believe that women are not stable earners may require a greater security deposit from female applicants. However, taking such action means treating tenants differently based on sex, which is illegal.²

Landlords can’t impose traditional gender roles on tenants

Part of treating all tenants the same regardless of their gender means not acting based on personal views on gender roles. For example, if a tenant is expected to do some upkeep at the property, such as snow shoveling or yard work, landlords can’t turn away female applicants because they believe men would be better able to handle such work.³

Sexual harassment is also illegal under the Fair Housing Act

The FHA’s ban on sex discrimination includes sexual harassment.⁴ Tenants can sue a landlord who engages in quid pro quo sexual harassment, such as exchanging sexual favors for reduced rent. Landlords can also be sued under the FHA for “hostile environment” sexual harassment, which can include unwanted touching or other offensive behavior toward tenants that interferes with their enjoyment of their apartment.

In 2007, the Department of Justice sued a Tennessee landlord who allegedly subjected females tenants to “severe, pervasive, and unwelcome sexual harassment.” According to these tenants, the landlord routinely entered their apartments without permission or notice and threatened eviction when they refused his sexual advances. The landlord settled, paying $110,000 in damages to nine tenants plus a $15,000 civil penalty.⁵

Sexual orientation and gender identity may also be protected

Sexual orientation and gender identity (which refers to how tenants view their own gender) are not explicitly listed as protected classes under the national FHA. However, courts are beginning to include protection based on these characteristics under the umbrella of sex-based discrimination.

One significant recent decision involved two married female tenants, one of whom was transgender, who applied to rent a townhouse in Boulder County, Colorado. After viewing the rental unit, the landlord told them they weren't welcome, citing concerns about her and her husband's image in the community. The tenants sued, claiming the FHA’s protection against sex-based discrimination covers sexual stereotypes. A federal judge agreed and ruled in favor of the tenants, marking the first time a court has upheld LGBTQ rights under the FHA.⁷

In addition, landlords who operate buildings with federal funding must comply with HUD's Equal Access Rule,⁶ which bans discrimination based on tenants’ actual or perceived sexual orientation, gender identity, or marital status.

Tenants should also check state and local fair housing laws

Many states have passed their own fair housing laws that protect tenants from sex-based discrimination in housing. These additional laws offer tenants more options for pursuing justice, since a tenant can file a fair housing complaint on either the federal or state level. Plus, a number of states—such as New York, California, and Washington—have explicitly added sexual orientation and gender identity as protected classes.

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[1] 42 U.S.C. § 3602(d)

[2] 42 U.S.C. § 3604(b)

[3] 42 U.S.C. § 3604(b)

[4] 24 CFR § 100.600

[5] U.S. v. Brewer, Civil Action No. 3:05-CV-579 (E.D. Tenn. 2007)

[6] 77 FR 5661 (2012)

[7] Smith v. Avanti, 249 F.Supp.3d 1194 (2017)