Harvard Law Review Harvard Law Review Harvard Law Review

Housing Law & Policy

Fair Housing For A Non-Sexist City

The full text of this Article may be found by clicking on the PDF link to the left.

Sex discrimination is built into the American landscape. Zoning ordinances, building codes, restrictive covenants, and other housing laws reflect — and then entrench — the gender norms of an earlier era. These laws evict domestic violence victims from their homes, privilege stay-at-home parenting over paid child care, push men into homelessness by eliminating forms of low-cost housing on which they disproportionately relied, and create spatial patterns of development that systematically exacerbate women’s secondary-earner status. This Article identifies the ways that gender disparities and sex stereotypes are built into our cities and suburbs — something few legal scholars have recognized — and for the first time shows that fair housing law provides the tools to confront this discrimination.

This Article also demonstrates that fair housing law has uniquely failed to tackle sex-discriminatory policies and structures. Neither litigants nor the Department of Housing and Urban Development, the agency responsible for administering the Fair Housing Act (FHA), has done so — unlike for other protected classes, including race or disability. Instead, the FHA has been used almost exclusively to attack individual, intentional acts of sex discrimination.

This Article proposes a new path forward, showing how the FHA can take on subtly sex-discriminatory housing policies. It identifies policies that are readily cognizable as sex discrimination under current law, including the FHA’s unique mandate that governments “affirmatively further fair housing.” Drawing on those examples, the Article advances a new understanding of “fair housing” for sex: one that seeks to dismantle the legacy of the gendered “separate spheres” ideology underlying so much of contemporary American urbanism.

Introduction

“What would a non-sexist city be like?” Architectural historian Dolores Hayden posed this question in a seminal 1980 article.1×1. Dolores Hayden, What Would a Non-sexist City Be Like? Speculations on Housing, Urban Design, and Human Work, 5 SIGNS S170 (1980). Forty years later, it is a question that American law has only rarely seen fit to ask, much less to answer. Women and men alike suffer from housing and land use laws that still reflect the gender norms of an earlier era: laws that deem paid child care incompatible with family life, laws that treat concentrations of single men as dangerous nuisances, and laws that spatially segregate home from work and systematically press couples into a gendered breadwinner/homemaker division of labor. Civil rights law — specifically, the Fair Housing Act2×2. 42 U.S.C. §§ 3601–3619. (FHA) — provides the tools to take on these gender disparities. But for the most part, neither litigants nor the Department of Housing and Urban Development (HUD), the agency responsible for administering the FHA, has done so. This Article shows how the Fair Housing Act can be used to challenge those laws and, in the process, to construct a fuller understanding of the meaning of fair housing.

The FHA prohibits sex discrimination in housing. But since 1974, when sex was added as a protected class,3×3. Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 109, 88 Stat. 633, 649. the FHA has, with one notable exception,4×4. That exception, concerning evictions of domestic violence victims, is discussed in section I.C, pp. 1703–10. been used to attack only the most blatant forms of sex discrimination: a landlord’s outright refusal to rent to men; a bank’s refusal to consider a woman’s income in giving a mortgage; or a landlord’s conditioning a rental on sexual favors from tenants, for example. As this Article demonstrates, fair housing law has not been used to tackle sex discrimination at a structural level — even though sex stereotypes and disparities pervade American housing. Legal scholars, too, have failed to identify the gendered foundations of our housing system as a fair housing issue. Land use controls, and most other subtle, facially neutral policies, have escaped scrutiny for sex discrimination from scholars, advocates, and government officials alike.

By looking at a variety of sources, from published cases to HUD annual reports, this Article makes clear that sex discrimination claims under the FHA are overwhelmingly — and unnecessarily — limited to individual and intentional acts. Moreover, HUD has also ignored sex in implementing the FHA’s unique requirement that governments “affirmatively further fair housing” (AFFH). As part of affirmatively furthering fair housing, HUD requires state and local governments to analyze and address obstacles to fair housing — even those they did not create — but HUD has not incorporated any analyses specific to sex discrimination into the AFFH process. The full force of the FHA has never been used to combat sex discrimination.

Substantial gender disparities remain in the housing market, even as the FHA’s protections against sex discrimination provide a ready-made doctrinal framework to address them.5×5. While “sex” and “gender” have distinct meanings, the terms have historically been conflated or used interchangeably in the law of sex discrimination. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1, 2, 9–10 (1995). Following this precedent, this Article treats the terms “sex” and “gender” as rough legal equivalents. In some cities, between sixty and seventy percent of evicted tenants are women.6×6. Deena Greenberg, Carl Gershenson & Matthew Desmond, Discrimination in Evictions: Empirical Evidence and Legal Challenges, 51 Harv. C.R.-C.L. L. Rev. 115, 120 (2016). This study assesses whether members of racial groups are more likely to be evicted because of their race, controlling for gender, but does not study the reverse. Id. at 121–22. As Professor Matthew Desmond has demonstrated, eviction plays a critical role in the lives of low-income women, especially women of color, and contributes to the ongoing structural disadvantages they face.7×7. Matthew Desmond, Evicted: Poverty and Profit in the American City 98 (2016) (“If incarceration had come to define the lives of men from impoverished black neighborhoods, eviction was shaping the lives of women. Poor black men were locked up. Poor black women were locked out.”). Women are also disproportionately likely to receive housing assistance. Three-quarters of households living in public housing are female headed, as are eighty-three percent of households receiving federal housing vouchers.8×8. Nat’l Low Income Hous. Coal., Who Lives in Federally Assisted Housing?, Hous. Spotlight, Nov. 2012, at 1, 2, https://nlihc.org/sites/default/files/HousingSpotlight2-2.pdf [https://perma.cc/JK36-FAAB]. Men, meanwhile, are far more likely to be homeless.9×9. See infra notes 301–303.

The effects of sex discrimination and sex stereotypes are not limited to vulnerable and low-income renters; they are foundational to the housing market and the American built environment more broadly. American urban planning reflects — and then entrenches — the gender roles of the eras when our housing and infrastructure were built and our zoning laws written. Historians uniformly identify the suburbs, where a majority of Americans now live,10×10. Jed Kolko, America Really Is a Nation of Suburbs, Bloomberg: CityLab (Nov. 14, 2018, 8:00 AM), https://www.citylab.com/life/2018/11/data-most-american-neighborhoods-suburban/575602 [https://perma.cc/4TAN-6B24] (describing federal survey data and alternative measures for defining “suburban”). as an “architecture of gender”11×11. Dolores Hayden, Redesigning the American Dream: The Future of Housing, Work, and Family Life 17 (1984). originally fashioned for “the needs of a bread-winning male and a full-time housewife.”12×12. Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States 300 (1985); see also Gwendolyn Wright, Building the Dream: A Social History of Housing in America 107–08 (1981). Architects going back to the nineteenth century intentionally designed suburbs to embody an ideology of “separate spheres,” with a female domestic sphere marked by uniformly single-family homes and pastoral, winding streets, kept far removed spatially and aesthetically from the male sphere of market activity.13×13. Hayden, supra note 11, at 22, 42–43; Jackson, supra note 12, at 62–63, 136, 243; Wright, supra note 12, at 107–08, 141, 247–56. Women were meant to create a moral residential space to serve as a refuge for men returning from work and the city.14×14. Nicole Stelle Garnett, Suburbs as Exit, Suburbs as Entrance, 106 Mich. L. Rev. 277, 281–82 (2007); see also Linda K. Kerber, Separate Spheres, Female Worlds, Woman’s Place: The Rhetoric of Women’s History, 75 J. Am. Hist. 9, 11–12 (1988).

Contemporary feminist analysis, and not just backward-looking scholarly critiques, likewise associated America’s single-family neighborhoods with the enforcement of traditional gender norms. These are the postwar suburbs whose restless housewives Betty Friedan described in The Feminine Mystique,15×15. Betty Friedan, The Feminine Mystique 57 (Kirsten Fermaglich & Lisa M. Fine eds., 2013). just as Charlotte Perkins Gilman, a leading nineteenth-century feminist, denounced suburban “lace-curtain prisons” before her.16×16. Jackson, supra note 12, at 136. Pop culture, too, has long recognized and reflected the gendered nature of the American built environment. Think of classic suburban sitcoms like Leave It to Beaver or, with its telling title, Father Knows Best. The white-picket-fence suburb is aesthetically intertwined with the gender (and racial) dynamics of the breadwinner father and the homemaker mother, just as the urban settings of The Mary Tyler Moore Show and Sex and the City were inseparable from their politically or sexually liberated protagonists. That traditional gender roles are embodied in physical space — and particularly in that most intimate space, the home — is widely, if not always consciously, understood.17×17. One critic has dubbed the genre of novel exploring miserable suburban couples the “Merritt Parkway novel” after the Connecticut highway on which its male characters commute to their unfulfilled stay-at-home wives. Gerald Howard, Notes on the Merritt Parkway Novel, 13 Tin House 51 (2012). And while most would recognize that certain suburban communities are especially amenable to a breadwinner/homemaker vision of family life,18×18. The Supreme Court has described such locations as “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). this Article demonstrates that sex discrimination pervades both urban and suburban land use planning and has systematic, aggregate effects at the regional and national level.

Legal scholars, however, have largely overlooked the ways that the American built environment systematically entrenches sex discrimination — and entirely failed to recognize fair housing’s potential to uproot that discrimination.19×19. Of course, fair housing law’s potential is limited to those aspects of urban planning that involve housing. This encompasses much, but hardly all, of city life. See, e.g., Daphne Spain, Gender and Urban Space, 40 Ann. Rev. Socio. 581, 582 (2014) (describing historically gendered public accommodations like the department store and the saloon). Standard recitations of the harms of contemporary land use patterns focus on racial inequality and segregation, housing affordability, economic mobility and productivity, and environmental protection — critical issues, all.20×20. E.g., Vicki Been, City NIMBYs, 33 J. Land Use & Env’t L. 217, 236–45 (2018) (reviewing legal, planning, and economic literature on housing and land use restrictions); John Infranca, The New State Zoning: Land Use Preemption amid a Housing Crisis, 60 B.C. L. Rev. 823, 825–26 (2019) (describing national attention to zoning’s effects “on housing supply and affordability, . . . regional and national economic growth, social mobility, economic equality, racial integration, and the environment”). But consistent with the lack of structural fair housing litigation over sex, legal scholarship’s canonical description of American planning’s flaws does not consider sex.21×21. Recent scholarship has begun to reexamine the related question of how zoning laws define the “family.” See generally Sara C. Bronin, Zoning for Families, 95 Ind. L.J. 1 (2020); Rigel C. Oliveri, Single-Family Zoning, Intimate Association, and the Right to Choose Household Companions, 67 Fla. L. Rev. 1401 (2015); Kate Redburn, Note, Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn, 128 Yale L.J. 2412 (2019). The forms of sex discrimination discussed in this Article stem from a similar history of zoning laws imagining and privileging the nuclear family. But given the FHA’s restrictive definition of “familial status,” 42 U.S.C. § 3602(k), few questions of how to treat “functional families” are cognizable as “familial status” discrimination under federal law, much less sex discrimination. See Oliveri, supra, at 1417–18 (listing cases where courts have rejected municipal policies as familial status discrimination). Even the few legal scholars who have analyzed specific aspects of American land use as gendered have not identified litigation as a solution — and have not mentioned the Fair Housing Act at all.22×22. For three leading examples, see Nicole Stelle Garnett, On Castles and Commerce: Zoning Law and the Home-Business Dilemma, 42 Wm. & Mary L. Rev. 1191 (2001); Katharine B. Silbaugh, Women’s Place: Urban Planning, Housing Design, and Work-Family Balance, 76 Fordham L. Rev. 1797 (2007); and Naomi Schoenbaum, Mobility Measures, 2012 BYU L. Rev. 1169. In line with historians’ greater emphasis on the role sex plays in shaping cities, see supra notes 11–12, legal historians generally are more attentive to these issues. See Maureen E. Brady, Turning Neighbors into Nuisances, 134 Harv. L. Rev. 1609, 1657 (2021); Redburn, supra note 21.

This need not be so. For other protected classes, the FHA has been used creatively and at times aggressively both to root out discrete discriminatory policies and to attack regional patterns of inequality in housing. Courts have struck down large-lot zoning as racially exclusionary, along with a wide array of facially neutral lending and insurance underwriting standards.23×23. Stacy E. Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 364–72 (2013). Orthodox Jews have successfully attacked zoning codes burdening the construction of second kitchens needed to keep kosher.24×24. Yeshiva Chofetz Chaim Radin, Inc. v. Village of New Hempstead, 98 F. Supp. 2d 347, 355 (S.D.N.Y. 2000). In its constrained use, sex stands out among the FHA’s protected classes. Yet nothing in the FHA’s text or legislative history requires that sex be treated differently from race, religion, or other protected classes. No intervening judicial precedent or HUD action has indicated otherwise. Legally, the FHA addresses each protected class in essentially the same way.25×25. There are certain class-specific provisions of the FHA, such as the “reasonable accommodation” provisions for disability discrimination, but those are not at issue here. 42 U.S.C. § 3604(f)(3); see also id. § 3607 (providing exceptions for religious organizations, private clubs, and senior housing). The Fair Housing Act is broader than its mandate to dismantle racial segregation and could be broader still if fully applied to sex, as this Article demonstrates. The same kind of wide-ranging impact suits brought by racial or religious minorities are available for men or women who are harmed by the policies of their state or local government, their homeowners’ association, or their landlord. And while the integrationist goals traditionally at the heart of fair housing have little direct applicability to sex discrimination — men and women not only live in the same neighborhoods as each other, they live in the same homes — the Fair Housing Act leaves room for an expanded conceptualization of fair housing, one that encompasses sex discrimination.

This Article builds toward that new understanding through an examination of three specific areas where the Fair Housing Act already allows for new structural sex discrimination claims. These examples are meant to be illustrative, not exhaustive: to serve as sites for examining the variety of roles sex plays in land use planning and might play in fair housing law, not to lay out a roadmap for a systematic litigation campaign nor to suggest these are the three most urgent issues of sex discrimination in housing. Accordingly, this Article focuses on claims where, at least to some extent, a distinct effect of sex can be recognized apart from other bases of discrimination. Some gender disparities in housing are primarily statistical artifacts of discrimination against other protected classes — particularly family status, which the Fair Housing Act defines as the presence in the household of children under eighteen years old.26×26. 42 U.S.C. § 3602(k). Women appear no more likely to be evicted than men after controlling for variables like the presence of children, for example.27×27. Matthew Desmond & Carl Gershenson, Who Gets Evicted? Assessing Individual, Neighborhood, and Network Factors, 62 Soc. Sci. Rsch. 362, 372 (2017). Such disparities are critical for understanding the gendered experience of the housing market, but poorer starting points for describing how sex discrimination shapes the housing market and how the law might respond.28×28. For similar reasons, this Article focuses on cisgender men and women and heterosexual couples, even as gay, transgender, and gender nonconforming people face significant housing challenges. Joseph J. Railey, Married on Sunday, Evicted on Monday: Interpreting the Fair Housing Act’s Prohibition of Discrimination “Because of Sex” to Include Sexual Orientation and Gender Identity, 36–37 Buff. Pub. Int. L.J. 99, 102–03 (2017–2019) (describing high rates of youth homelessness among LGBTQ teens and strong evidence of discrimination in rental process). In light of the Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), it seems likely that prohibitions on discrimination “because of sex” apply to discrimination against LGBTQ people under the Fair Housing Act, just as they do under Title VII. See Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, 81 Fed. Reg. 63,054, 63,058–59 (Sept. 14, 2016) (reaffirming HUD’s position that the FHA “prohibits discrimination because of gender identity,” id. at 63,058, based on reasoning similar to Bostock’s). But for now, this Article aims to start with a fuller conceptualization of the meaning of “sex” in fair housing law in better-established contexts.

But both men and women also suffer from housing discrimination on the basis of sex, per se. That discrimination will usually, if not always, be intersectional, based on a combination of multiple protected class statuses interacting in ways that are more than merely additive. In particular, family status is deeply interconnected with sex, and race suffuses nearly every important issue in housing and urban planning. In the early years of land use law’s development, issues of immigration and nationality also played particularly outsized roles.29×29. For two recent descriptions of the importance of intersectional analysis in fair housing, see Melvin J. Kelley IV, Testing One, Two, Three: Detecting and Proving Intersectional Discrimination in Housing Transactions, 42 Harv. J.L. & Gender 301 (2019); and Kate Sablosky Elengold, Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing, 27 Yale J.L. & Feminism 227 (2016). Sex discrimination never exists in pure isolation. Even so, given the underdeveloped jurisprudence of sex and fair housing, there is value in disentangling and spotlighting the specific causal roles of sex, as separately as possible.30×30. Among other things, from a litigant’s perspective, sidestepping the complicated realities of intersectionality flattens claims but can also make them more cognizable in the short-term. See, e.g., Rachel Kahn Best et al., Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 Law & Soc’y Rev. 991 (2011) (providing empirical data in employment discrimination cases); Elengold, supra note 29, at 229 (analyzing tradeoffs in housing context). In order to better establish the importance and distinctive role of sex for fair housing, this Article emphasizes cases where sex discrimination can be analyzed relatively (but only relatively) independently.31×31. Future scholarship and advocacy need not be so limited. See infra note 109 for examples of factual contexts where sex discrimination plays an important role that is less susceptible to being isolated in this way.

This Article thus proceeds in three parts, moving from the status quo of sex as a category under fair housing law, to an examination of new factual contexts in which fair housing scrutiny could productively expose and remedy sex discrimination, to a potential doctrinal reconceptualization of sex and fair housing. Part I surveys fair housing law’s current treatment of sex discrimination, cataloging the narrow scope of sex discrimination claims under the FHA to date. Part I further describes the major exception to this pattern — involving ordinances that impel the eviction of domestic violence victims — which provides proof-of-concept that sex-based FHA claims have a broader role to play in reforming the housing market.

Part II then identifies three concrete housing policies and practices that could be readily cognizable as sex discrimination under current law: restrictions on in-home child care, which disparately impact women; the near elimination of single-room occupancy (SRO) living, which disparately impacts men; and the effect of macro-level patterns of American regional development on the gender wage gap, which should be analyzed and addressed as part of the AFFH planning process. Part II closes with a brief discussion of what other issues of sex discrimination local governments might analyze through the AFFH process.

Finally, Part III explores how fair housing doctrine should — consistent with both the text and purpose of the statute — evolve to better address broader, policy-focused sex discrimination claims.32×32. A world with more sex-based fair housing claims also has implications for scholars’ understanding of sex discrimination. Existing sex discrimination scholarship has particularly “focused on employment discrimination, reproductive freedom, and equal protection under the Fourteenth Amendment.” Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 n.16 (2019); see also id. at 85 n.22. Professors Elizabeth Sepper and Deborah Dinner’s recent article on sex discrimination under public accommodations laws has, importantly, extended that literature to an additional statutory framework. Id. at 82. This Article continues that project of expanding the study of sex discrimination to the full range of civil rights statutes. Most fundamentally, the Fair Housing Act needs an expanded theory of “fair housing” for sex. The FHA is interpreted broadly and purposively, and requires not only nondiscrimination but also the affirmative furthering of fair housing. Usually, this means integration, for tackling racial segregation is, and should remain, the most important function of the FHA.33×33. Racial segregation was the chief ill the FHA was enacted to combat; the FHA passed Congress the week after the assassination of Martin Luther King, Jr. Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2516 (2015). And racial segregation remains severe and damaging, exacerbating inequalities in health, employment, education, and social mobility. See The Dream Revisited: Contemporary Debates About Housing, Segregation, and Opportunity in the Twenty-First Century 9–10 (Ingrid Gould Ellen & Justin Peter Steil eds., 2019). For a small sampling of the extensive literature on the harms of segregation, see, for example, David M. Cutler & Edward L. Glaeser, Are Ghettos Good or Bad?, 112 Q.J. Econ. 827, 828 (1997); Raj Chetty, Nathaniel Hendren & Lawrence F. Katz, The Effects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment, 106 Am. Econ. Rev. 855, 856 (2016); Jorge De la Roca, Ingrid Gould Ellen & Justin Steil, Does Segregation Matter for Latinos?, 40 J. Hous. Econ. 129 (2018); Robert J. Sampson, Patrick Sharkey & Stephen W. Raudenbush, Durable Effects of Concentrated Disadvantage on Verbal Ability Among African-American Children, 105 PNAS 845, 845 (2008); and Ingrid Gould Ellen, Is Segregation Bad for Your Health? The Case of Low Birth Weight, 2000 Brookings-Wharton Papers on Urb. Affs. 203 (William G. Gale & Janet Rothenberg Pack eds.).

But the FHA should not lose its special affirmative drive in the context of sex. This Article therefore offers a new understanding of “fair housing” derived from the concrete sex-discriminatory housing policies it has identified.

“Fair housing,” in its fullest sense, should require a housing system designed free from sex stereotypes, particularly those rooted in the ideology of “separate spheres.” That antiquated vision, which romanticized the home as a space under feminine control and protected from commerce, industry, and other masculine pursuits, underlies each of the new fair housing issues identified by this Article. Working toward separate spheres required removing market activity, including paid child care, from residential zones. It required ensuring that residential life would be organized around women’s domestic leadership, and therefore stigmatizing and restricting commercialized shared living arrangements — especially those that were all male. Finally, separate spheres ideology demanded further distancing these newly created, exclusively residential zones from employment districts, forcing a choice between working for higher wages and working nearer to home. The gender norms of a century ago shape where and how we live today. By attacking the relics of separate spheres ideology, the Fair Housing Act can help reveal and rethink the Victorian gender stereotypes implicit in so much land use and housing law.

 

The full text may be found by clicking the PDF link below.

 


* Legal Fellow, Furman Center for Real Estate and Urban Policy, New York University School of Law. I am grateful to Vicki Been, Nestor Davidson, Deborah Dinner, Ingrid Gould Ellen, William Eskridge, Clayton Gillette, Dolores Hayden, Rick Hills, Sophie House, Suzanne Kahn, Anika Singh Lemar, John Mangin, Katherine O’Regan, Sandra Park, Shayak Sarkar, Erin Scharff, David Schleicher, Justin Steil, and Katrina Wyman for their comments, conversations, and contributions. Thank you also to the editors of the Harvard Law Review, whose hard work and insightful suggestions improved every page of this Article.