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What Are Gender Identity and Gender Expression Discrimination?
In recent years, the U.S. Department of Housing and Urban Development and federal courts have begun interpreting the federal Fair Housing Act (FHA) to prohibit such discrimination on a national level. Though the FHA does not explicitly bar a housing provider, seller or lender from discriminating on the basis of gender identity or expression, such discrimination may constitute a form of sex discrimination. This is because sex discrimination has been interpreted to include discrimination based on an individual’s non-conformity with sex and gender stereotypes. However, for decades, California state law has explicitly prohibited housing discrimination based on gender identity and gender expression.
Gender identity and expression encompass both the gender with which someone personally identifies, as well as the way an individual chooses to express their gender. California law defines “gender expression” as a person’s “gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.” The law seeks to protect those who identify as transgender or genderqueer, as well as those who may identify as cisgender, but present themselves in ways that do not comport with traditional gender and sex stereotypes.
In some cases, gender identity and gender expression discrimination may be linked with discrimination based on sexual orientation. They may also be closely linked to disability discrimination, which also protects individuals who are perceived to have disabilities. For example, a housing provider would be engaging in disability discrimination if he refuses to rent to a transgender person because he wrongly believes that it is a mental illness.
Gender Identity/Expression Discrimination in HUD Programs
Since 2012, entities receiving federal funds from the Department of Housing and Urban Development have been banned from engaging in discrimination on the basis of gender identity and gender expression. The rule makes it clear that owners and operators of HUD-funded housing, or housing insured by HUD, may not discriminate on the basis of gender identity. Banks that provide mortgages insured by the Federal Housing Administration are also prohibited from considering gender identity. These rules apply nationwide, regardless of local anti-discrimination laws.
Transgender Persons in Single-Sex Homeless Shelters
Single-sex or segregated shelters have been advised to assign individuals to dormitories or programs based on their stated gender identity. Shelters must directly address privacy and safety concerns, which may include allowing a transgender client to use bathrooms or dressing areas at a separate time, or providing privacy partitions or allowing access to a private bathroom if available. These accommodations should not be forced upon a transgender client, but if requested, should be granted when possible. Complaints from other persons are not to inform any decision about placement–the individuals who complain about the placement of a trans person may leave the shelter if they are uncomfortable, but the trans person should not be asked to leave or be placed with the non-identifying gender because others are uncomfortable. Shelter staff must address any harassment immediately and should take steps to ensure the safety of all program participants.
Shelters are also prohibited from asking for proof of gender, or requiring that an individual have completed transition, or currently be transitioning. They should not assign dormitories based on identification documents, as they may not reflect a person’s chosen gender. They also cannot ask about medical history or anatomy.
Is There a Religious Exemption to the Fair Housing Laws?
The only religious exemption is for housing that is (1) operated for noncommercial purposes, and (b) operated by a religious institution or a closely affiliated organization. This type of housing is very, very limited and only permits religious institutions to discriminate on the basis of religion – not gender identity or expression.
As discussed above, any organization receiving HUD funding must refrain from discriminating on the basis of gender identity. Many religious institutions receive such funding to operate transitional housing or shelters — these programs are not exempt from the Fair Housing laws. Also see our page on religious discrimination for a discussion of the religious rights of participants in HUD-funded programs operated by religious institutions.
As for private housing providers, there is no religious exemption to the Fair Housing laws. A private landlord may not object to a transgender tenant simply because they have a religious objection to transgender persons.
What Do Gender Identity and Gender Expression Discrimination Discrimination Look Like?
Gender identity and gender expression discrimination will often be based on hateful stereotypes about trans and gender non-conforming persons. It is illegal for a housing provider, real estate professional or lender to do the following:
- Deny housing because of an erroneous belief that trans persons are dangerous to children
- Refuse to refer to a trans tenant by his or her preferred pronoun or name
- Harass, or allow another tenant to harass, trans or gender non-conforming tenants
- Ask trans or gender non-conforming persons whether they are male or female, or about their sexual orientation
- Treat a trans person differently because of a belief that he or she is mentally ill or has a communicable disease
- Assert that being trans or gender non-conformance is wrong and that the homeseeker or tenant should find religio
Gender Identity and Gender Expression Discrimination Resources
- HUD LGBT Discrimination Page
- HUD LGBT Rule
- HUD Guidance on Placement for Transgender Persons in Single-Sex Shelters