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 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 (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 the FHA has, with one notable exception,4 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 In some cities, between sixty and seventy percent of evicted tenants are women.6 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 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 Men, meanwhile, are far more likely to be homeless.9
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 as an “architecture of gender”11 originally fashioned for “the needs of a bread-winning male and a full-time housewife.”12 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 Women were meant to create a moral residential space to serve as a refuge for men returning from work and the city.14
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 just as Charlotte Perkins Gilman, a leading nineteenth-century feminist, denounced suburban “lace-curtain prisons” before her.16 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 And while most would recognize that certain suburban communities are especially amenable to a breadwinner/homemaker vision of family life,18 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 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 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 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
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 Orthodox Jews have successfully attacked zoning codes burdening the construction of second kitchens needed to keep kosher.24 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 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 Women appear no more likely to be evicted than men after controlling for variables like the presence of children, for example.27 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
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 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 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
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 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 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.