Tonya and Rachel Smith were denied housing in Colorado, but a judge found that violated the Fair Housing Act. Photo courtesy of Lambda Legal

Court Rules for Same-sex Couple Denied Housing by Colo. Landlord

by Chris Johnson, Washington BLade

A federal judge has ruled for a same-sex couple who alleged discrimination after a Colorado landlord refused to grant them housing, issuing relief on the basis the discrimination they faced amounted to unlawful sex stereotyping.

In a 12-page decision, U.S. District Judge Raymond Moore, an Obama appointee, ruled Wednesday the Boulder County property owner violated the Fair Housing Act and the Colorado Anti-Discrimination Act by denying housing to Rachel, who's transgender, and Tonya Smith. The couple were married seven years ago and have two children, ages seven and three.

The couple, represented by Lambda Legal, argued the landlord, Deepika Avanti, discriminated against them for failing to conform to gender stereotypes violates the prohibition on sex discrimination in the Fair Housing Act.

"The Court agrees," Moore ruled. "Such 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."

Moore also grants relief on the basis the landlord's denial of housing to the couple violates a state law in Colorado prohibiting discrimination on the basis of sex, sexual orientation and familial status.

Although the couple made the case the Fair Housing Act was violated explicitly because of the transgender status of Rachel and the couple's sexual orientation, Moore declined to accept this argument.

"The Court declines to do so for two reasons," Moore writes. "First, the Motion as to Count I is based on sex stereotyping, and Count I's reliance on sex stereotype as 'discrimination based on sex' did not include such allegations. Second, Count I also relies on discrimination based on sexual orientation and gender identity/expression, but the Motion was not based on such theories. To the extent Plaintiffs are attempting to bootstrap such other theories onto their sex stereotype theory, the Court declines to consider something not pled."

The decision comes on the heels of the U.S. Seventh Circuit Court of Appeals ruling that determined sexual-orientation discrimination in the workplace violates the ban on sex discrimination in Title VII of the Civil Rights of 1964.

Had the district court in Colorado adopted the same idea, it would have been the first to determine the prohibition on sex discrimination under Fair Housing Act also bars discrimination in housing on the basis of sexual orientation.

Omar Gonzalez-Pagan, staff attorney for Lambda Legal and attorney for the couple, nonetheless said in a statement the decision is a "tremendous victory" for LGBT people because it found anti-LGBT discrimination stems from sex stereotyping.

"For the first time, a federal court has ruled that the Fair Housing Act's sex discrimination prohibitions apply to discrimination based on stereotypes about sexual orientation and gender identity," Gonzalez-Pagan said. "This is two federal courts two days in a row that have said that laws prohibiting sex discrimination protect LGBT people. It sends a strong message: discrimination against LGBT Americans in housing and employment is illegal and will not be tolerated."

In 2015, Tonya and Rachel Smith sought to rent a two-bedroom home in Gold Hill, Colo., along with their children. Although Avanti expressed a willingness to rent the home to the family, that changed after she met the couple in person.

Avanti allegedly wrote to the couple in an email after meeting them and declined to offer the house to them based on the couple's "uniqueness" and a fear it would jeopardize her standing in the community.

"Your unique relationship would become the town focus, in small towns everyone talks and gossips, all of us would be the most popular subject of town, in this way I could not be a low profile," Avanti wrote.

In a statement, Tonya Smith said the couple is "delighted with this ruling" because of hardship the couple had to endure in their search for housing.

"We were so shocked and upset by Deepika's emails, that simply because of who we are she wouldn't rent to us," Tonya Smith said. "We felt it was unfair and illegal, and now a court has agreed. No one should ever have to go through what we went through, and hopefully this ruling will protect other couples like us who are trying to provide safe homes for their families."

The prayer of relief sought by the couple was a determination Avanti's actions violated both federal and state law; an order enjoining the landlord from future discrimination and requiring her to complete a fair housing training; and payment for compulsory and punitive damages as well as litigation costs.

Gonzalez-Pagan said in a statement the decision serves as evidence housing discrimination is a pervasive problem for LGBT people, but "very much underreported."

"In many instances, LGBT people who are either overtly or subtly discriminated against in housing do not report the discrimination because of their immediate need to find housing or due to the costs of pursuing a claim," Gonzalez-Pagan said. "Property owners who engage in this kind of discrimination must be held accountable."

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association.This article originally appeared in the Washington Blade and is made available in partnership with the National Gay Media Association.
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