Bay Windows - October 2, 2003
Ethan Jacobs, ejacobs@baywindows.com.

By and large, these resources developed by the gay and lesbian community do not exist in the transgender community in Boston. There are generally no transgender-specific roommate listings in Bay Windows and few on Craig's List. Even trans-focused Web sites like Butchdykeboy.com have just a few listings each month. Just as gays and lesbians were once forced to feel out each potential roommate to determine if they were gay friendly, transgendered people often have to look for clues and hints in each housing ad to deduce whether the people placing the ad would accept a transgender roommate. The anxiety only increases as transgender people respond to ads by phone or go to look at apartments in person.

Jill Weiss, a transgendered woman who moved to Boston three years ago to get her Ph.D. at Northeastern University, was given a list of phone numbers by the university of people looking for roommates. When she went to see the apartments in person, she found that most people expressed discomfort with her being transgendered.

"Even though I generally pass pretty well, ... they'd call me back and say, 'We don't want some guy living in our apartment,'" said Weiss.

She found that the situation only worsened when she explained to potential roommates that she was transgendered.

"I generally felt that saying something up front was a mistake," said Weiss. "Nobody actually said to me, 'Do you have a penis?' but I could see that the question was there in their eyes."

Is such treatment legal? Despite the 2002 passage of an ordinance by the Boston City Council outlawing discrimination against transgendered people in a number of areas, including housing, the legal issues around housing discrimination based on gender identity are complicated and, in many cases, unresolved.

Karen Loewy, staff attorney at Gay and Lesbian Advocates and Defenders (GLAD), said that the ordinance does not mandate that Boston's Fair Housing Commission (FHC) investigate claims of housing discrimination based on gender identity. Instead it issues a public policy statement saying that transgendered people should have equal access to housing, and it instructs the FHC to conduct studies and issue public reports around transgender housing issues.

Loewy said GLAD believes that the state housing antidiscrimination laws, enforced by the Massachusetts Commission Against Discrimination (MCAD), should protect transgender people, although state housing laws do not explicitly name gender identity as a forbidden basis for discrimination.

MCAD has ruled that transgendered people are included as being protected by sex and disability in the area of employment, Loewy said, but the issue has remained untested in terms of housing discrimination. Yet Loewy believes that the same protections should apply to housing law.

And while the transgender city ordinance does not mandate investigations around gender identity discrimination in housing, the FHC does see protecting transgender people from housing discrimination as part of its mission.

"We, [like] MCAD, although we don't specifically call out transgenders as a protected class, we've interpreted our definitions of sex and sexual preference to include transgenders," said Victoria Williams, director of Boston's Office of Civil Rights, which oversees the Fair Housing Commission.

Weiss told Bay Windows that during her housing search, which continued past the passage of the transgender ordinance, she called FHC to report discrimination. She said she was told that FHC did not have the resources to investigate her claim and that she should take her case to MCAD. She said she chose not to both because the housing search left her no time to file a complaint with MCAD and because she assumed the Boston ordinance would be unenforceable at MCAD.

Williams said that up until the beginning of 2003 FHC had rapid staff turnovers, and it was common to refer cases to MCAD when the city office faced more calls than it could handle. Since early 2003, Williams said, FHC has been able to handle all of its own investigations. In terms of enforcement, Williams said her office has the authority to levy fines for discrimination based on any of the law's protected categories. As of today Williams said her office has not seen any claims of housing discrimination based on gender identity.

Despite these protections, legal advocates said that not all forms of discrimination in housing law are illegal.

Jon Argenziano, director of JRI's Health Law Institute, said that roommates looking to sublet a room in their apartment may not be subject to the same rules as landlords. The Health Law Institute deals with housing and eviction issues around people living with HIV/AIDS, and it also works to protect the legal rights of transgendered people.

"If a landlord says, 'You can't live here,' that's one thing," said Argenziano. "If a group of people decide they don't want a trans person [as a roommate], it's another."

Argenziano said that he is unsure whether a person placing an ad looking for a roommate would be bound by any of the city, state, or federal housing laws.

Loewy agrees that the law around antidiscrimination ordinances as they apply to subletters is a gray area.

"If a landlord were to say 'no men' or 'no trans people,' they could be held liable," she said. Yet she finds it difficult to imagine that housing law would, for example, force a group of women to live with a male roommate if they wanted to maintain an all-female apartment.

Williams said that she herself was unsure whether the city's housing antidiscrimination laws applied to subletters.

As far as other forms of housing where transgender people might face discrimination, Loewy said that many of those are also gray areas.

In terms of housing at colleges and universities, Loewy said that she is unsure whether schools would be regulated by laws concerning housing or education.

"There's no specific [state] educational statute that applies to private universities," Loewy said, explaining that those institutions are still permitted to discriminate based on both gender identity and sexual orientation. She said that housing antidiscrimination statutes could conceivably apply to colleges and universities, but she did not know for certain.

At the city level, Loewy said that the transgender ordinance does forbid discrimination in colleges and universities. Yet the ordinance allows exceptions for schools that wish to remain single-sex or to separate male and female students. Despite this, Loewy feels the ordinance does discourage discrimination against transgendered people.

"It's certainly a clear statement of policy that the [city] doesn't want universities to discriminate based on transgender students," said Loewy.

Private programs like transitional housing for domestic violence victims and group homes may be covered under antidiscrimination laws.

"Generally speaking, housing ordinances and housing statutes do apply to private agencies," said Loewy. Yet she cautioned that there are many exemptions to these statutes, and each agency should be examined on a case by case basis.

Prisons, said Loewy, do not fall under housing statutes and are considered to have a custodial relationship over their inmates.

Loewy said that she believes that there is still much work to be done around housing and gender identity discrimination.

"This is still an evolving area of law, no question," said Loewy. "We are starting to see courts and agencies taking cognizance of the discrimination faced by members of the transgender community, and I think we're going to see more of that as time goes by."

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