A federal judge in Alabama has laid out the playbook for how discrimination against gays and lesbians in housing could fall afoul of federal law prohibiting discrimination on the basis of "sex."
District Judge William M. Acker, Jr. ultimately rejected the discrimination complaint made by James Earl Thomas against the Department of Housing and Urban Development (HUD). But that was because Thomas's complaint about a federally subsidized housing facility in Birmingham relied strictly on "sexual orientation" (which isn't federally protected) rather than gender nonconformity, which can be viewed as "sex" discrimination based on sex stereotyping and is therefore federally protected. In fact, Thomas claimed he was discriminated against because he was "not gay." Zack Ford reports:
This prompted Acker to take up the question if any sexual orientation complaints could be considered under the [Fair Housing Act], and he actually agrees that they could. He acknowledges that in 2012, HUD issued the Equal Access Rule, expanding protections based on sexual orientation and gender identity within the constraints of the law’s “sex” protections. Specifically, this step opened up two grounds for such a complaint: “discrimination because of nonconformity with gender stereotypes” and “discrimination in the form of sexual harassment.”
Acker affirms this interpretation of the law as a “permissible reading of ‘sex.'” “These type of expanded protections for such individuals under the FHA is [sic] directly rooted in non-conformity with male or female gender stereotypes, and not directly derivative of sexual orientation as an independent and separate ground for protection.” [...]
“Thomas does not petition under a theory of gender non-conformity,” Acker writes, “but rather relies on sexual orientation as the sole basis for discrimination separate and independent of gender."
As such, Acker found that HUD did not have jurisdiction to act on the complaint.
But Acker's reasoning suggests that, under certain circumstances, lesbians and gays may be able to bring complaints in areas of the law where "sex" discrimination is prohibited even if "sexual orientation" isn't explicitly protected. In fact, he found that was the case under the Fair Housing Act.
Transgender Americans have also been having success with employment discrimination cases brought under Title VII of the Civil Rights Act of 1964, which prohibits gender-based discrimination in the workplace.