Read the full decision: Smith v. Avanti

A Colorado federal court has ruled that the federal Fair Housing Act (“FHA”) prohibits discrimination against LGBT individuals based on gender-nonconformity, as that constitutes sex discrimination under the FHA.

A couple with children sought to rent a townhouse.  One member of the couple is transgender.  The owner of the property asked the couple for a picture of the family, and the couple sent a picture and then met with the owner at the property.  Following the visit to the property, the owner emailed the couple and stated that he did not want to rent to the couple for two reasons: first, the couple had children; and second, the owner had “kept a low profile” in the community and wanted to keep it that way.  The owner later clarified that the couple’s “unique relationship” might bring unwanted attention to the owner.

The couple filed a lawsuit alleging violations of the FHA and state fair housing laws.  The FHA makes it illegal to discriminate in the sale or rental of housing based on a person’s “sex, familial status, or national origin.”  The FHA also makes it illegal to refuse to negotiate the sale or rental of housing because a person falls within one of the protected categories.  The couple alleged that the owner’s refusal to rent them their property constituted both sex and familial status discrimination under the FHA, and made similar allegations under the state’s fair housing law.   The couple filed a motion for judgment and the owner did not oppose the couple’s motion.

The United States District Court for the District of Colorado ruled that the owner’s conduct violated the FHA as well as the state’s fair housing laws.  The court first examined the sex discrimination claims.  The FHA does not prohibit discrimination based on LGBT status; the couple claimed that they suffered sex discrimination because one member of the couple was being stereotyped because of her gender nonconformity.

The court agreed that discriminating against a person for not conforming to gender stereotype norms, such as the gender of the person they should marry or be attracted to, constituted discrimination under the FHA.  The court also agreed that discrimination against a transgender person because they aren’t conforming to their birth gender (here, a male not acting like a male) constituted sex discrimination.  The court declined to extend the FHA protections to gender identity claims or sexual orientation claims, as those allegations were not plead by the couple.

The court also agreed that the owner had violated the FHA’s prohibition on familial status discrimination.  The FHA defines “familial status” as “one or more individuals (who have not attained the age of 18 years) being domiciled with…a parent or another person having legal custody of such individual or individuals.”  Here, the owner had stated that she was not renting to the couple because they had children and so this constituted familial status discrimination in violation of the FHA.

The court also found that the owner had violated the state fair housing law, including the state law prohibitions on discrimination based on sexual orientation.  Therefore, the court entered judgment in favor of the couple.

Smith v. Avanti, No. CV16CV00091RMMJW, 2017 WL 1284723 (D. Colo. Apr. 5, 2017).  [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].

Notice: The information on this page may not be current. The archive is a collection of content previously published on one or more NAR web properties. Archive pages are not updated and may no longer be accurate. Users must independently verify the accuracy and currency of the information found here. The National Association of REALTORS® disclaims all liability for any loss or injury resulting from the use of the information or data found on this page.


That's Who We R

The campaign ads rally consumers to "Look for the R" for reassurance, resources, and reliable guidance on their path to property ownership.


The latest from NAR about about COVID-19 (coronavirus), its impact on the real estate industry and events, and federal programs affecting REALTORS®.