Dr. Jillian T. Weiss

New HUD Housing Regulations: Even Martians

Filed By Dr. Jillian T. Weiss | January 21, 2011 2:00 PM | comments

Filed in: Politics
Tags: FHA, Housing and Urban Development, HUD

The U.S. Department of Housing and Urban Development (HUD) has announced proposed new regulations to prohibit discrimination based on sexual orientation or gender identity in programs sponsored by or financed by HUD. Alex discussed them in a post this morning.

On a media conference call with HUD yesterday, HUD Secretary Shaun Donovan mentioned a sad case involving public housing from last July, in which Michelle DeShane wanted to add her trans male partner to her housing voucher. The local housing authority said no, saying "I don't think we take your kind here." They were referred to another housing authority because "they accept everyone, even Martians."

I also wonder to what extent the rule would prohibit inquiry into biological or anatomical sex. I myself have run into this problem. I asked about it on the media conference call with HUD yesterday.

NCTE made an interesting public statement yesterday, in which it noted that a forthcoming public report, co-sponsored by NCTE and the Task Force, was cited as evidence demonstrating the dire need for housing protections for the transgender community. Glad to see that NCTE and the Task Force are helping to shape good policies.

This is another example of how the Obama Administration has moved forward on the administrative front, a more accessible legal system than the legislative, which is dominated, now more than ever, by conservative philosophies.

The rule that jumped out at me, as a recent home owner with an FHA mortgage, is the one that would prohibit lenders from using sexual orientation or gender identity as a basis to determine a borrower's eligibility for Federal Housing Administration-insured mortgage financing. This also immediately brings to mind the case of Rosa v. Park West Bank, a GLAD-litigated case based on the federal sex discrimination laws, wherein Lucas Rosa--a transgender person who appears female but was assigned the sex designation of male at birth--who was told when applying for a bank loan to go home and change to appear more traditionally masculine. That case, decided by the First Circuit Court of Appeals, covers New England, but is not binding precedent in other areas of the country. Under the new HUD rule, banks that are FHA lenders would not be permitted to engage in such behavior. I'm not certain whether this rule would take effect where a non-FHA loan is involved, however.

The rule also covers public housing and rental vouchers (called Housing Choice vouchers).

In regard to my question about whether inquiry could be made into biological or anatomical sex, I received a fairly general answer, noting that inquiry into gender identity would be prohibited. But the rub in such situations is that some courts have totally misunderstood this issue, improperly ruling that inquiry into "biological gender" is permissible because it is not "gender identity." Of course, that makes no sense whatsoever. The whole point of gender identity non-discrimination is that one cannot use biological or anatomical issues to deny non-traditional gender identity.

I hope that the regulations will be sufficiently clear that transgender people will be protected from such inquiries as well.

For those interested in this issue, here's a good law review article from the Columbia Journal of Law and Social Problems on the subject, written by Daniella Lichtman Esses, entitled Afraid to Be Myself, Even at Home: A Transgender Cause of Action Under the Fair Housing Act

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Don Sherfick Don Sherfick | January 21, 2011 4:33 PM

Please be careful, Jillian. A Martian acquaintence just called me very upset about what he (remember, women are from Venus......and have their own housing authority) felt was the interplanetary equivalent of an ethnic slur.

Don, the word "Martian" is the appropriate noun for a form of life who normally resides on Mars, just as "African" is the proper noun for a person who is a native of Africa, even regardless of skin color.

Now, if Dr. Jillian had referred to the Martians as "little green men" ... that would have been an interplanetary ethnic slur, since Dr. Jillian has no personal knowledge (I presume) about either their physical stature or their skin color ... or whether they even have skin, for that matter.

While we are nitpicking ... just sayin'.

Zoe, An Australian dollar, or a`U.S. dollar?

Australian. At the time we made the bet, that was actually worth less than the US one. Now it's about even.

"I myself have run into this problem."

The aegis link isn't working Jillian.

Thanks for the heads up, Gina. The Aegis link is here. I've updated it in the post as well.

Aiyiyi, what a lotta reading.

I celebrate the fact that "the U.S. Department of Housing and Urban Development (HUD) has announced proposed new regulations to prohibit discrimination based on sexual orientation or gender identity in programs sponsored by or financed by HUD" but I found a few things curious while reading this post.

In regard to my question about whether inquiry could be made into biological or anatomical sex, I received a fairly general answer, noting that inquiry into gender identity would be prohibited. But the rub in such situations is that some courts have totally misunderstood this issue, improperly ruling that inquiry into "biological gender" is permissible because it is not "gender identity."

It doesn't seem too difficult to understand how the judge twisted this around to suit his prejudices. He seems to say West accommodated Goins under the MHRA because (I am am assuming a men's or unisex restroom was available) Goins had a facility available to her in spite of her self-image or identity that she was not kept from using. The law does not seem to specifically say she has to be provided a facility that is consistent with her self-image or identity, or am I missing something? Are there parts of that statute missing from the decision that would reflect differently?

What I find confusing is the terminology being used - "biological gender", "biological sex", "anatomical sex". Defining "gender identity" under "sexual orientation" makes everything more confusing in the Goins case. Anatomical sex is seemingly straightforward, unless one's anatomy is ambiguous. How does one determine what the word ambiguous means in relation to one's sex anatomy? It would take a lot of time to read through medical journals and a lot money to pay for the subscriptions to gain access to answer that. O K, how about biological sex? What does that mean? Again, one would have the time and be able to afford the subscriptions to conclude there is not one simple answer. I wonder if there is a clear legal distinction between sex and gender. If there is, or even if their meanings are in every way equivalent, there does not seem to be any single definition that holds in all jurisdictions. With all the various possibilities, how would any single definition be fair to all people?

I know the way it's been decided who qualifies under Title VII of the Civil Rights Act under sex discrimination has gone a couple of different ways under Ulane and Schroer. Then there is the issue of gender identity. I started thinking about a case which has been used by Zucker to provide an antithesis to the gender identity implications in the
Reimer case:


If the person who this case study was based on encounters sexual harassment and files suit under Title VII, I wonder how the courts would rule on it. What would this person's marriage rights be in Texas, for instance? I think this case raises questions about gender identity, brain sex, biological gender, biological sex and external anatomical sex. I don't think a valid, clear ruling can be made, except in the case of external anatomical sex but then there would be other things to look at besides the external genitals, like skeletal structures, etc.

It seems if one is to take all that current scientific information can tell us, including the most advanced genetic findings, I don't know how the courts can make precise pronouncements on who has a valid sex and who does not, given all the possibilities. I guess we really cannot hope for too much, in light of the Citizens United case or other similar decisions where the reasoning is difficult to comprehend. The way things are, it doesn't seem court cases involving sex and gender are researched and reasoned very thoroughly.

Just a couple of other things that had me wondering about from another of the links you provided.

Trans-gender individuals, . . . blur these sharp lines of gender and sex - from DANIELLA LICHTMAN ESSES? paper

I question that assertion. It seems to me nature blurs those lines. That's been my personal experience.

Like women, “[a]s a group, transgender and gender non-conforming people are dis-
proportionately poor [and] homeless,”88

It seems the presumption is being made that transgender represents a third gender, which seems to me, in a binary system, most likely to revert back to one's birth sex assignment in legal decision making based on what's implied here although, I wonder about Zucker's ablatio penis case. Wouldn't that be the cruelest of all if it did? I, also, cannot help but notice that intersex discrimination is never mentioned in any of these cases. I am aware of court cases where it has been an issue. And, I remember encountering a person with PAIS who has met with lifelong discrimination and has a name similar to one of the names mentioned in this article. Does everyone just get thrown into the transgender bin when their situation is one people don't want to take the time to think about?

Good points, Edith. In answer to your question about whether everyone gets thrown into the transgender bin, I think the answer is, at least from the standpoint of current legal trends, "yes." I agree it's an unfortunate situation, but I think this is an unavoidable tension between individual identity, and the public (and legal) perception of group identity, particularly at its public inception. Some influential legal minds pushed for the transgender/"gender identity" bin when this legal issue was just getting started around 2000, and I recognized then that I could either join the party or be a lone voice in the wilderness. I chose to join the party, and I think I made the right decision, but I recognize that your points are valid and important. I hope that later on, once the legal community has begun to understand "gender identity" in a more nuanced way, these important distinctions can be taught to a more knowledgeable and willing legal community.

Martin Mull once said, "The trouble with jogging is that the ice falls out of your glass." The one quote of his that really sticks in my mind, however, is his answer to the question of how he writes his songs, whether he starts with the lyrics or the melody first. His answer, of course, was "Yes". I guess that just about covers it for so many things. I wonder if that's the way he worked when he came up with these lines:
Umm, Captain Klumpz....
Yes, Malarkey?
The men haven't eaten in days, sir.
Yes Malarkey.
Captain, I don't think you fully understand. I said the men have not eaten in days now.
I heard you, Malarkey, thank you.
Captain, you've gone quite mad. I'm telling you for the last time, the men have not eaten in days!
Well, force them! You've plenty of men, haven't you?

Wow. Rosa v. Park West Bank wasn't that long ago. It was decided in 2000.

I just found the link to the Bay Window article:

"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 hard to determine what LICHTMAN ESSES was implying with her comment or quote:

Like women, ?[a]s a group, transgender and gender non-conforming people are dis-
proportionately poor [and] homeless

She would be speaking for all transgender women and transgender men but not categorizing people as male or female but "transgender" seems to put them into a category that allows them to be legally targeted for discrimination. I'm basing that on the quote I pasted from the Bay Windows article. "Lone voice in the wilderness" yeauh? What else is knew? When one considers the push for Marriage Equality is for equal rights as opposed to the second class status Civil Unions offer, one wonders why "transgender" people don't push for their equal rights by virtue of the same logic.

I need public housing.
They want to see my birth certificate.
Oh, bother!

Still paying more than half my income for housing....

ELECTRONIC ARTICLE: Experiment of Nurture: Ablatio Penis at 2 Months, Sex Reassignment at 7 Months, and a Psychosexual Follow-up in Young Adulthood Susan J. Bradley*, Gillian D. Oliver, Avinoam B. Chernick§, and Kenneth J. Zucker

From: "Christine Burns"
To: "'Press for Change News Distribution'"
Sent: Wednesday, July 12, 2006 2:11 PM
Subject: Goodbye HBIGDA - Hello WPATH

Clearly, the ablatio penis "experiment" refers to medically recognized sex reasignment. It doesn't refer to "transgender surgery". Since 2000 there seems to have been a push de-legitimize sex change. What are the implications? What about sex changes done at age 7 months? Did the doctors who performed the surgery on the ablatio penis patient and others like her have the intention that these people should grow up in a netherworld where their rights would be capriciously granted?

Are people like these to be considered transgender(ed). What about people who had sex reassignment surgeries and hormone treatments before and during the period when the "influential legal minds pushed for the transgender/"gender identity" bin" who thought they were going through sex reassignment to an opposite legally recognized sex? Is there no remorse about pulling the rug out from underneath them? What about pediatricians who take it upon themselves to reassign someone a sex opposite to the one they were originally assigned who ends up being jerked around by a legal system that first recognizes their sex assignment then tells them that they are actually transgender and not the sex the doctors took it upon themselves to impose upon them non consensually?

Do parents have the right to impose what a child will have to go through in adulthood if a child's gender is not aligned with the sex imposed upon them? Who is the "transgender bin" good for? Is it good for doctors? What is Zucker's role in all this? What part did he have in the WPATH name change? Why was there a name change? How did he get on the DSD committee? Why did the WPATH name change occur around the same time as the Chicago Statement on the Management of the "Disorders of Sex Development? Why? Why? Why? Why does Alice Dreger write long dissertations in defense of J Michael Bailey who promotes the work of Zucker's colleague as "science"? Seems to me putting everyone under a "transgender umbrella" is a simple way of de-legitimizing someone's sex reassignment.

I think we should add "penis size" to the list of non-discrimination categories.

No, I do not have a hidden agenda.

Well, then, A J. Why don't you just come right out with it. What IS your hat size, anyway?

Edith, I'd be happy to give you a measurement ... but in the autumn of my life, it seems to get smaller every year.

Hint: If I sent you a current head-to-toe nude shot, it might not make it out of my pubic hair (so you can understand why I am moderately interested in trans issues ... at this rate, in only a few years SRS would be largely a moot effort).

Interesting, A J. I didn't mean to take a pot shot. I couldn't tell what you were trying to say. A penis doesn't make someone a man, that much I am able to understand - for a variety of reasons. I don't have a clue about your situation. Your interest in the plethysmograph had me wondering. I don't know. If you follow a line of reasoning and ask a lot of questions you think are valid it is possible to give people the impression you are implying more than you are. I am using the word "you" in a general sense. Everything has implications, a lot of the consequences of which are unintentional. The whole what makes a man a man and what makes a woman a woman is something everybody should be asking about themselves, not just people like me. I've spent a lot of time on the subject. What I come up with has a lot of implications for more than just the narrow class of people I belong to. I'm no spring chicken, either.

Hey, no problem ... no offense taken.

I was just makin' all that stuff up ...

... or was I?


I dunno. wuz yoo? I wuzn't. fuzzy wuzzy wuzzn't very fuzzy wuzzee. howzby yoo? michelle bachman, michelle bachman, howzby yoo, howsby yoo? howz yaw cousin see maw, he just joyn da piece kaw, howsby yoo?

Wow, I don't think I've ever had to show my birth certificate to rent anything. Certainly not an apartment. I have a Drivers License, which is legal identification anywhere inside the united states when last I checked and if that isn't good enough, or enough ID, I have a passport.

Someone wants to see my birth certificate they damn well better have a badge, or a legal reason to see it, otherwise it's staying locked away safe. Made that mistake once with my late husband, never again.

After years of domestic violence and stalking by my husband and in-laws, if someone doesn't have a damn good reason backed up by law to see my BC, there's going to be hell to pay, police involved and a big honkin law suit. Just the way it is.

I'm the same way with my Social Security Card.

After being stalked I have to be. Went through hell to get that mess dealt with.

Why in the name of all that's holy would an apartment manager want or need to see ones BC? I simply don't get that. They have no legal right or reason to see that.