Recently, I had the opportunity to attend the annual Community Association Institute Law Seminar. One of the topics covered at the seminar was transgender issues in community associations. We all know that community associations are microcosms of the society at large, and transgender issues are no exception. Transgender persons face violence, discrimination in the workplace, educational challenges, and health concerns. Relevant to community associations, they also face significant hurdles related to housing. A report of the 2015 U.S. Transgender Survey (USTS), looking at almost 28,000 transgender persons in all fifty states, the District of Columbia, American Samoa, Guam, Puerto Rico and US military bases overseas, found that only 16% of respondents reported homeownership, as compared to 63% of the US population in general. The report also found that almost a third of respondents had experienced homelessness at some point in their lifetime.
Transgender persons are protected by the Fair Housing Act, which prohibits discrimination based upon sex in the sale or rental of housing. In recent years courts have increasingly found discrimination against transgender persons is sex discrimination, and HUD has issued guidance indicating that it will investigate complaints of discrimination in this area based on this understanding of this law. Residential community associations are bound by the Fair Housing Act and need to be aware of the possible types of discrimination that may exist.
What does this mean for community associations? Associations cannot treat transgender persons differently when it comes to enjoying the privileges of membership in the Association. Obvious examples would be prohibitions against treating transgender persons differently when it comes to selecting persons to serve on a board or committees, or in the approval process for architectural submissions. Less obvious examples would be the need to call a transgender person by his or her preferred pronoun and new name, if one is selected, and the obligation of the Association not to discriminate against someone in the use of same sex locker rooms or bathrooms. What about a transgender child, who may wish to swim on the swim team of his or her identified sex, and not the team of his or her birth? The courts on a national level are just beginning to fully explore these issues, and State courts tend to lag farther behind. The most important lesson may be to be aware of potential discrimination issues as they emerge, and to consider carefully if the person is being treated differently based upon their transgender status as opposed to another, unprotected factor.
As always, please feel free to contact any of our community association attorneys in Charlotte or Greensboro to discuss any questions you may have.