In a series of three cases accepted for review earlier today, the U.S. Supreme Court will likely answer a question in 2020 that will likely impact our federal Fair Housing Act (FHA) and how one of its protected classes – sex—is applied under the law. In agreeing to review these decisions, the Court will answer a question that remains unclear under federal law — do the anti-discrimination laws prevent employers from firing workers because of their sexual orientation and gender identity. While these matters involve what is known as Title VII of the Civil Rights Act, as the Fair Housing Act is Title VIII of the Civil Rights Act, it is likely the Court’s rulings in these cases will also apply to housing and how sex is defined under the FHA.

Each case, involving slightly different fact patterns, is poised to finally answer the question under federal law which has caused difficulty for many lower courts for some time now: does the Civil Rights Act, which forbids discrimination on the basis of sex, include discrimination based on gender identity or sexual orientation?

It is believed (but not yet known for certain) that the Trump Administration will support a less expansive definition of the term “sex” (such that the law will not include sexual orientation or gender identity) as contrasted with what the Obama Administration would have advocated (likely that sexual orientation and gender identity are encompassed with the statute). While a number of courts and federal agencies have concluded the broad scope of the law includes sexual orientation and gender identity, opponents argue that if a law is to the changed – it should be amended by Congress and not by unelected judges or agency officials.

To be sure, while the Supreme Court will answer this question under federal law, remember that some states and local governments have previously amended their employment and housing anti-discrimination laws to include sexual orientation and/or gender identity as additional protected classes.

Just A Thought.

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