Fair Housing for a Non-Sexist City

Abstract

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 which 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 HUD, the agency responsible for administering the Fair Housing Act (“FHA”), have 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 which 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 which seeks to dismantle the legacy of the gendered “separate spheres” ideology underlying so much of contemporary American urbanism.

Keywords: fair housing, Fair Housing Act, sex discrimination, gender, land use, housing,