Afraid to Be Myself, Even at Home: A Transgender Cause of Action under the Fair Housing Act

By Esses, Daniella Lichtman | Columbia Journal of Law and Social Problems, Summer 2009 | Go to article overview

Afraid to Be Myself, Even at Home: A Transgender Cause of Action under the Fair Housing Act


Esses, Daniella Lichtman, Columbia Journal of Law and Social Problems


Discrimination against transgender individuals in housing is pervasive. Nonetheless, American jurisprudence has not explicitly addressed whether there are legal protections available to transgender individuals who are the targets of housing discrimination. This Note argues that courts should utilize a broad and literal understanding of the Fair Housing Act's prohibition against discrimination on the basis of "sex," thereby recognizing that animus towards an individual's sex and his or her expression thereof, is, by its very terms, discrimination on account of "sex." In so doing, courts will find that transgender housing discrimination constitutes actionable "sex" discrimination within the meaning of the Fair Housing Act.

I. INTRODUCTION

Societal preconceptions of a rigid binary system in which gender matches anatomical sex are deeply engrained. Transgender individuals, who blur these sharp lines of gender and sex, face discrimination in virtually every aspect of their lives.1 This discrimination is relentless and widespread, manifesting itself in social interactions, employment, housing, and even acts of overt violence.2

The right to return each day to a home that feels safe and warm, to a haven that shelters you from the harsh realities of life, is a right that should be afforded to all members of our society. Unfortunately, for many of this nation's transgendered individuals, this right remains both unprotected and unavailable. As "crissyinmaine," a recent Craigslist3 poster on the transgender forum, described:

The Madness of it All . . . Discrimination that is . . . Looking on C/L for a room to rent, find a suitable one, go to visit, everything seems fine . . . nice person, we chat .... I leave to look for some others also . . . several days later [I] call back and am told on the phone that the place is not avail [a] ble . . . ok . . . me thinks . . . but the waves of discontent and suspicion are stirred to life in my mind .... [I] quickly compose an email from a non/gender specific account and am told [J "[Y] es the apt is still available, let me know when you want to see it" ... that prom [p] ted (before the tears of sadness and the sobbing of non acceptance flowed) a[ ] reply saying thanks and then revealing that I was the person they earlier told that the apt wasn[']t available . . . with some sprinkling of shame on them [I] hope . . . also the details of this to the Maine Human Rights Conunission ....

I just know that during my 20 years in the Coast Guard, [I] didn[']t care what the person that we were trying to save from the sea was all about, [i]t didn[']t matter to me the color of the skin of the person needing a helicopter to lift them off a sinking ship[ ]nor did the thought that a (in my case) transgendered person wasn[']t worthy of human respect and acknowledgment as a person as equal to them . . . .4

The denial of access to housing is not the only form of housing discrimination that transgender individuals face. Housing discrimination also plagues transgender individuals in the homes in which they already live.5 Lorena Borjas, a transgender woman, fell victim to housing discrimination in her own home after a new realty company took over her building and brought in a new superintendent, Mr. Fernando Batista.

Mr. Batista has called me a faggot on a nearly daily basis. He has asked me when I will move out because faggots are not allowed in the building, instructed painters not to paint my apartment, cut my cable wires and turned off my electricity, asked me "Why don't you die?", and told me that in his country they kill people like me. Though I live as a woman, Mr. Batista has consistently referred to me as a man, and has said to other people, "Why would you call her a woman? She's a man." When my friends have come to visit me, Mr. Batista has told them that I was dead and told them to get out because they don't allow faggots in the building. Mr. Batista has also talked about me to other tenants, and other tenants have started to call me and my friends faggots. …

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Afraid to Be Myself, Even at Home: A Transgender Cause of Action under the Fair Housing Act
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