Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules — the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law.1 Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape the design of ordinary objects, public space, data, and automated algorithms.2
As to housing specifically, Kazis’s emphasis on gender is noteworthy; most examinations of exclusion in housing and land use concern race and class. Kazis takes up the invitation of Professor Dolores Hayden, a prominent urban historian, to imagine how we might redesign urban spaces and rethink the connection between the city and suburb.3 Kazis’s focus on “sex” means not just women as a broad category, but women who own businesses, participate in the wage economy, and need childcare zoned in their neighborhoods, as well as men who are low-income and need single-room occupancy (SRO) and other housing arrangements to make housing affordable.
Kazis notes in many of his examples that race and class are inevitably entangled with gender.4 Yet what received less attention from Kazis is the role women might play in driving exclusion. Race and class dynamics do not only compound exclusion based on gender — the notion that gendered exclusion is most intensely felt for those who are poor or of color, or who operate in these intersectional categories. Race and class destabilize the very category of gender, because women themselves and gendered norms can drive the decisions to exclude based on race and class. This is evident most powerfully in the creation and design of suburbs that subsidized and constructed neighborhoods to include a particular set of women, and a specific domestic conception of women and family, while it excluded other people and family arrangements.5 Thus the story of the urban-suburban landscape is not simply one of gendered exclusion. The suburbs also are built on the dynamics of inclusion, placing (some) women at the center. As I argue below, these twin dynamics of exclusion and inclusion affect the law and politics of housing and planning.
In Part I, I begin with the Fair Housing Act6 (FHA). Kazis’s central observation that sex discrimination claims have been less prominent under the Act than race claims is persuasive.7 Yet the FHA has incorporated new forms of discrimination: for instance, disability and discrimination against families with children are the most active enforcement categories under the Act. And sex discrimination has been an enforcement priority in other civil rights areas such as employment. This Part invites future work to better understand the political economy of gender discrimination in fair housing, and whether specifically the less prominent place of sex is distinctive to housing, and why. In Part II, I move away from the enforcement of the Act itself to highlight a key challenge of Kazis’s argument. Kazis is careful to connect gender to race and class in understanding who is affected by discriminatory planning. His analysis contends less with how gender drives exclusion. Gendered assumptions and politics create the domestic prison that Kazis describes in the account of the suburbs, and they also drive the law and politics of exclusion. White women are often the beneficiaries of exclusionary housing policies. These historical dynamics allowed former President Trump to appeal explicitly to “suburban housewives”8 in his attempt to weaken the Fair Housing Act directives that Kazis relies on for a solution. While this observation does not diminish Kazis’s key insights, proffered solutions must be attentive to how gender shapes both exclusion and inclusion. Women might welcome Kazis’s destabilization project to advance equity in planning and land-use; women might also be invested in preserving current arrangements. In Part III, I consider what inclusive planning might look like beyond the litigation that Kazis proposes, and even beyond affirmatively furthering fair housing (AFFH). Standing alone, AFFH is at most a partial solution to propel more inclusive planning. However, insights from AFFH could form the basis of a more robust framework for building forward-looking, equitable neighborhoods and city planning that occurs not just at the federal level, but at the state level. Finally, I conclude on a more hopeful note, by suggesting future attention to the politics that might drive more inclusive housing policies.
I. Sex and the FHA
Kazis argues that sex and gender receive less attention than race in the field of fair housing. As Kazis notes, gender is not utterly ignored as seen in recent litigation and regulatory attention to domestic violence and sexual harassment in housing, protecting families with children (often headed by women), and gender identity exclusion.9 And the Supreme Court’s holding in Bostock v. Clayton County10 that “sex” discrimination in employment includes sexual orientation and gender identity should, by any reasonable interpretation, also apply to the FHA’s prohibitions on “sex” discrimination.11
Yet one can easily agree that sex and gender are less central to public and legal conceptions of fair housing than race is. When the FHA was originally enacted in 1968, it did not include prohibitions against sex discrimination;12 Congress added “sex” to the FHA’s protected classes in 1974.13 By contrast, race features prominently in the FHA’s origin story — the result of organizing for “open housing” by civil rights advocates — with housing becoming the key terrain for civil rights battles outside the South.14 The uprisings of 1967 resulted in the Kerner Commission Report, which made the passage of the FHA and addressing the “urban” crisis its focus.15 In urging passage of the 1968 law, President Johnson specifically emphasized the need to address Black isolation from neighborhoods of opportunity.16 The FHA’s initial emphasis on race is even more marked with regard to the AFFH provisions of the statute, which congressional drafters and advocates conceived as a tool to address the government’s history in funding and subsidizing segregation by using federal funds to proactively combat discrimination and promote integration.17 Of course, while race historically has been the central concern of the FHA, racialized housing discrimination and segregation have not been fully addressed.
Gender’s absence from the initial civil rights conception is not unique to the Fair Housing Act. Title VI of the 1964 Civil Rights Act,18 which prohibited discrimination in federally funded programs, was in part a response to under-enforcement of Brown v. Board of Education,19 and does not include a prohibition on sex discrimination; it would not be until 1974 that Congress enacted Title IX20 to address gender discrimination in schools. Sex prohibitions were famously added to Title VII on the House floor, over the initial objections of some of the Act’s proponents.21
As a general matter, these early statutory histories may shape initial patterns of litigation and regulatory enforcement,22 but they do not seal a statute’s fate. Researchers have found that many aspects of Title VII have been more successful in advancing gender than racial inequity for instance.23 Regulatory attention can shift in response to social movements and new realities. For instance, other categories in the Act have come to command regulatory attention despite their initial omission from the FHA. Disability now occupies a central place in enforcement activity under the Act, as does discrimination based on family status.24
There remains a puzzle then as to why sex has been less a focus of the FHA from the advocacy perspective, and Kazis does not take on the project of explaining why, noting that this is likely the subject of another article.25 The relative visibility of discrimination may play a role in shaping enforcement priorities. For instance, in the area of disability some argue that the high number of housing complaints results from the ease of detecting a landlord’s failure to make housing accommodations.26 Contrast that with racial discrimination in housing, which often remains invisible to those who are victimized by it, leading to fewer lawsuits. How visibility plays out with regard to gender enforcement is not entirely clear. Gender perhaps is too hidden in zoning and planning decisions to become an enforcement priority for lawyers or regulators.
Another potential factor that Kazis notes is that fair housing may have limited importance for middle-class and professional women.27 SROs or the availability of childcare facilities may be less of a priority to gender-based social movements that are not led by poor women or women of color. If true, this explanation might also be implicated in the politics that sustain the land-use and zoning policies that Kazis seeks to challenge. I do not fault Kazis for not addressing these dynamics, but as I suggest in the next Part, the role of women in being indifferent to or sustaining exclusionary policies also requires examination. As Kazis notes when arguing for a more expansive reading of the AFFH provision, advocates and lawyers have played a crucial role in expanding the meaning of civil rights laws.28 So a key question with regard to “sex” is to understand how social movements come to understand housing issues as implicating gender and sex, and what explains those instances where they do not.
II. “Suburban Housewives”: Gender and the Politics of Exclusion
Kazis’s argument is not only that sex receives less attention in fair housing enforcement, but also that gender and gendered norms are embedded in zoning, land use, urban design, and other housing decisions in ways that often go unseen. While Kazis’s examples (for instance, nuisance ordinances that harm victims of domestic violence enforcement and zoning regulations that exclude home-based childcare29) are persuasive, they also intersect with class, race, and family arrangements. At base, these planning decisions are exclusionary because they operate with a middle-class or traditional nuclear family at the center of their conception of the “good” neighborhood. Zoning for childcare centers would upset the divide between uses that characterize traditional single-family zoned neighborhoods from those that allow connections with paid work, industry, and commercial centers. This is gender at work, certainly, but also class — childcare centers are most necessary for families that depend on group care rather than being able to afford more privatized forms of care, such as a parent (a woman typically) as a primary caregiver or a hired nanny. Some of these zoning and enforcement policies may also target neighborhoods based on race and class. For instance, advocates have brought suit under the FHA arguing that chronic nuisance ordinances are disproportionately enforced against Black renters, and in Black neighborhoods.30
These examples show how exclusion might be driven by factors in addition to gender, such as race, class, or disability. Yet exclusion also operates by placing some women at the center of design and planning decisions. This occurs most powerfully in the account of the traditional post-war suburb. As is well documented, suburbs excluded based on race and class, through state and market subsidies (tax, insurance, and mortgage), racially restrictive covenants, and transit policies. These dynamics of exclusion also served to include: by placing women (white, middle-class) at the center of policy and design, as chief beneficiaries. As Dolores Hayden and others have shown, the traditional post-war suburb was designed and marketed to women.31 Advertisers sold images of suburban, domestic bliss —in which women were surrounded by consumer goods — giving product manufacturers, marketers, and advertisers a stake, along with the housing industry, in the suburban ideal. The implications of this suburban ideal, with its racial and class homogeneity and its spatial divide from the city, extend beyond the marketing of consumer goods, of course. Wealth and educational opportunity are built on these planning and policy decisions. The post-war suburbs facilitated the homogenization of immigrant and ethnic identities into “white” identity and constituted a social transfer of wealth that helped create the “American Dream” for some, while excluding others.32
Kazis’s project is, of course, to challenge the homogenized conceptions of gender and family structure that fueled these design decisions, and to highlight the way in which the built environment “reflects — and then entrenches” outmoded general roles.33 Yet this project would also have to include women as agents of exclusion. The allure of this suburban “dream,” built to include some women but exclude others, complicates the gender analysis, and shapes the political economy of housing still today. Some women will find themselves restricted by these traditionally gendered housing and planning conceptions that sharply delineate work and domestic life, breed dependence on a primary (male) commuting breadwinner, and deny them more flexible ways of balancing care and work. Others will remain invested in the project for the social and economic advantages that it provides them and their families.
When President Trump tweeted to “suburban housewives” that the 2015 AFFH regulation would be rescinded and that those living out the “Suburban Lifestyle Dream [would] no longer be bothered or financially hurt by having low income housing built in” their neighborhoods,34 he was appealing to this ideal of domesticity that constrains women and yet is built on the physical separation from African Americans and the poor. He was urging continued investment in the suburbs as an economic, political, racial, and yes — gendered — project.
As I suggest below, this tweet depends on a conceptualization of the suburbs that is disappearing from people’s lived experience. This conceptualization flattens the current racial, ethnic, class, and gender complexity of the suburbs, and calls out to an imagined woman who might no longer appreciate being reduced to a suburban housewife or targeted for racist appeals. Yet, it is an attempt to place women at the center of housing and urban policy; not to exclude them. And the more substantive action that the Trump Administration took of rescinding the 2015 AFFH regulation shows the contemporary resonance of this appeal.
The investment in the current spatial and political geography of the United States is an investment in perhaps the most powerful vehicle through which American society provides wealth and reproduces social and class status. Again, the dynamics are not just ones of exclusion, but also of inclusion. Women with education, wealth, social capital, and time are often driving housing and school policies and planning decisions today. Our structures of local government and our municipal policies are designed to enable these women to exercise school and neighborhood choice in order to maintain advantages for themselves and their families in a spatially segregated world.35
How to focus on gender given this context? When Hayden offered her challenge to design a non-sexist city, she attended to this iterative relationship between race, class, and gender. The harm in the urban design and planning of the suburbs was that it restricted women to particular roles, and excluded many other types of women, families, and ways of being a woman in the world.36 Gender stereotypes and discrimination in planning create a wall — for those who are excluded by race, who may need to board public transportation to get to work, who may lack two parents, who rent — and a prison for those who must stay inside, anchored to this restrictive domesticity. Women are likely to be found on both sides of this physical separation; working to prop up the walls as well as dismantle them.37
III. Furthering Inclusive Planning
Even once we understand that gender, as well as race and class, shape zoning and design decisions, it is not obvious that law is relevant to the remedy. Kazis makes the case for fair housing law, which is not typically central in housing and planning discourse. Legal commentators concerned with exclusionary housing often focus on zoning, tax, and redevelopment policy but not always fair housing.38 And Hayden’s original appeal to design non-sexist cities appears written to community residents, planners, and developers, but not to lawyers.
First, I agree with Kazis that statutory civil rights law can play a role in producing inclusive planning. Notwithstanding Justice Kennedy’s dicta in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.39 (ICP) that disparate impact theory should not interfere with local planning decisions, the disparate impact standard might appropriately create opportunities and incentives for more equitable and inclusive planning. Leading planning organizations recognized this in ICP when they submitted an amicus brief urging the Court to retain the disparate impact standard, arguing that it “encourages planners and developers to engage proactively with communities affected by development plans” and “creates incentives for institutions and developers to share their findings with stakeholders and to explore less burdensome alternatives in an effort to obtain community support.”40
Yet I believe that litigation under disparate impact will likely play only a modest role in advancing inclusive planning given the general piecemeal nature of litigation, specific barriers to litigation in the FHA context (such as the paucity of fair housing lawyers), the narrowness of disparate impact theory, and the fragmented nature of local land-use decisions.41 The law that is likely to drive inclusive planning will be legislative and regulatory, involving the use of federal directives, spending, and grants to state and local governments. This law will involve multiple levels of government, though there will be a key role for federal and state (as opposed to simply local) governments, and it will need to engage housing and civil rights advocates to participate in administrative processes and press their claims in the administrative state.
As to AFFH specifically, the regime will have to be strengthened to be useful in advancing inclusive planning. The Trump Administration weakened the 2015 AFFH regulatory approach.42 Even if the rule is restored by the present Administration,43 by several accounts the 2015 rule was not sufficiently strong in the first instance; it relied too much on unenforceable “carrots” and was not attached to a wide-enough swath of federal funds to create pressure for change.44 Like Kazis, I believe that AFFH has power despite these limitations; a sanguine perspective supported by evidence showing that the 2015 rule resulted in adoption of inclusive housing and planning policies.45 But while Kazis suggests that current fair housing law remains the “essential legal mechanism” for promoting inclusive housing,46 I believe that the law of inclusive planning will need to be developed beyond traditional fair housing law. AFFH’s elements should be extended into a broader framework, and connected to other pressing community and policy concerns such as affordability and supply.47 Indeed, one advantage of a regime that goes beyond traditional fair housing law is that it allows for consideration of affordability and income, factors that are not explicit considerations in fair housing law.48 Key elements of the AFFH regime that could inform a more expansive approach to inclusive planning at the federal, state, and local levels include impact assessments, robust and meaningful participation, mapping, and conditioned spending.
There is evidence that this new, broader framework for inclusive planning is gaining currency with lawyers, housing advocates, and planners at least in the area of race- and class-based exclusions. Commentators have advocated for a more inclusive and equitable approach to planning using the rubric of “anti-subordination planning” and “reparative planning” that incorporates some of these elements.49 Lawyers and policy advocates urge use of regulatory impact assessments, such as “opportunity zone impact assessments” to evaluate how zoning and development projects further inclusion and mobility.50 AFFH’s mapping instrument (even though it needs tweaking51) reveals disparities in access to opportunity and in the distribution of housing, quality schooling, transportation, and other social goods that are not always seen or understood as “discrimination” under traditional fair housing law. These are technocratic tools, but they also serve the democratic function of making visible the role of the state and powerful private actors as a counter to the narrative of neutral markets and policies. Mapping has thus become an advocacy tool to show how past Home Owners’ Loan Corporation (HOLC) redlining is manifested in contemporary patterns of disinvestment and where additional resources are required.52
The emerging “law” of inclusive planning includes regulation, prohibitions, and directives, but also conditioned spending. AFFH’s regulatory regime operates by placing requirements on state and local grantees to advance regulatory goals of equity and inclusion. Given the fragmentation of housing policy and the political resistance at least to racial remedies, the carrots and sticks of federal spending offer an avenue to encourage states and localities to adopt these policies if a sufficient accountability mechanism, incentive structure, and political environment are in place.53 As a practical matter, the current affordable housing crisis may help with the incentives and politics. Recognizing this crisis, current proposals build on the AFFH regime by recommending the conditioning of new money for housing and other infrastructure on state adoption of inclusive housing and planning measures.54
The law of inclusive planning will not just be federal; it will involve greater coordination at the regional and state levels. Commentators in the field have noted the fragmentation of American planning and housing policy, and in particular how an extensive reliance on local tax revenue serves to fuel race and economic inequality.55 Federal law should be structured to encourage states (rather than localities) to take a more proactive role in housing planning.56
The broader inclusive planning framework that I encourage here is a form of law, but goes beyond litigation, and even beyond what is traditionally regarded as civil rights or fair housing law.
Finally, whether the regime of inclusion is built on the Fair Housing Act as Kazis urges, or on the broader framework that I suggest in Part III, politics will inevitably matter. In Part II, I suggested that Kazis’s focus on gender understates the ways in which women of privilege have worked to maintain a status quo that frustrates the types of land use and zoning reforms that Kazis urges. These politics can also work against the reforms I suggest in Part III. The politics of housing often seem insurmountably difficult. There are the competitive and exclusionary incentives built into localism,57 the hidden nature of the planning and design rules and decisions, and a formidable ideology of market and policy neutrality.58 Our individual incentives and desires to create wealth for our families or access opportunity (“good” schools and “good” neighborhoods) seem to depend on exclusionary policies that do not serve the broader collective. This is the pessimistic account — one that seems well-supported by resistance to integrative remedies in housing and schools, a resistance in which women have often played crucial roles.59
In concluding, I want to suggest a more optimistic account that builds on Kazis’s intervention and the intervention of others in the field. Making visible how exclusion and norms operate in planning, land use, and housing to perpetuate inequality serves as a first step. Beyond visibility, the seeds of a more inclusive framework for reform are already sprouting. President Trump’s invocation to “suburban housewives” may have been mobilizing to some women. But others were taken aback by what one commentator termed “barely disguised racial fearmongering” revealing an “understanding of women voters [that] is based on six reruns of ‘Happy Days’ plus a vacuum cleaner ad from 1957.”60 In the domain of partisan politics there is evidence that these fear-based appeals, timed before the 2020 presidential election, didn’t translate to hoped-for electoral success.61
Importantly, it may be that the imagined suburb is no longer real. The incremental, partial success of some fair housing policies and other interventions have altered the racial and demographic makeup of the post-war, “American Dream” suburbs, making them more racially and ethnically diverse and more heterogeneous with respect to class than was true even thirty years ago.62 And women (including suburban women) were sometimes at the forefront of adopting the inclusionary policies that transformed neighborhoods.63
And of course, family structures and women’s roles have changed, due to law, public policy, culture, and social movements. Some women thus may be less invested in the zoning and spatial arrangements of the past century, which depend on a vision of the family that is “now exceptional” in a world in which “traditional” male-female, two-parent families are declining, and most women with children participate in the wage economy.64
The question remains whether further change is possible. The present affordable housing crisis might create an opportunity for changing law and policy around land use and housing, providing an opening for new proposals to develop housing in a way that attends to racial and economic segregation, and might also better attend to sex and gender.65 These developments provide some basis for optimism that more equitable neighborhoods and fairer spatial arrangements can be achieved.
* Jerome B. Sherman Professor of Law, Columbia Law School. I am grateful to Justin Steil for helpful comments and Joohwan Kim for excellent research assistance.