The law still offers lesbians and gay men little protection against discrimination, except in Connecticut, Massachusetts, New Jersey, Wisconsin, and the various cities and counties that have seen fit to add the phrase "sexual orientation" to their civil rights laws. (Hawaii has a gay rights law, but it covers only employment.) Nonetheless, gay people are not totally at the mercy of others in trying to obtain or keep a home or in seeking goods or services.

Can a landlord refuse to rent to or a homeowner decline to sell to a person just because he or she is gay?

In most parts of the country, yes. American law has traditionally invested property owners with enormous discretion. In general, a landlord may rent to anyone he or she choosesor a homeowner sell to any personas long as Congress or the state or local legislature has not explicitly limited that discretion. And, so far, most legislatures have declined to exercise their authority in favor of lesbians and gay men.

An infamous decision from New York City illustrates the power of the general rule of laissez-faire. A black, divorced woman sued a landlord over his refusal to rent an apartment to her, claiming triple, illegal discriminationrace, sex, and marital status. The landlord alleged in response that he had turned down her application because she was a lawyer, and lawyers are apt to know and assert their rights. The court believed him and dismissed her complaint. A landlord can act irrationally, the court made clear, provided he does not violate any of the pertinent statutory prescriptions. He may decide "not to rent to bald-headed men because he has been told they give wild parties" or "bar his premises to the lowest strata of society, should he choose, or to the highest, if that be his personal desire." 1

Yet, if the circumstances are right, a lesbian or gay man may have a claim against the property owner on a ground other than sexual-orientation discrimination. Some places, as just mentioned, have laws that prohibit discrimination on account of a person's marital status.2 In a case in Washington State, a landlady was held to have violated such a statute in telling two men who were looking for an apartment together that she would rent only to a married couple.3 In another case in New Jersey, a landlord refused to rent to three gay men because, as the court put it, "he feared that they might later acquire AIDS and thereby endanger his family residing on the premises." The refusal was deemed discrimination on account of a "perceived handicap" and overturned as a violation of the state's handicap discrimination statute.
Does that mean that a landlord can freely evict a lesbian or gay tenant?

Not necessarily. If the tenant is protected by a written lease, the landlord usually cannot evict him or her without proof that the lease has been violated. Unfortunately, many leases are blatantly one-sided and contain clauses that strictly limit how the tenant may use the apartment and who may share it. For example, leases often restrict occupancy to the person who signed the lease, or to those related "by blood or marriage." If a person has a lease with such a provision and a lover or roommate moves in, the landlord might use the clause to seek to evict both the tenant and the roommate.

Not all clauses are enforceable simply because they appear in a lease, however. All states have laws governing the rental of property, and some severely circumscribe a landlord's discretion. New York State has a statute, passed in 1983, that permits every tenant to have at least one other person living in the apartment, regardless of the nature of the relationship between them and regardless of any terms of the lease to the contrary.5

So-called rent-control and rent-stabilization laws, where they exist, are especially strictand advantageous. In a recent case in New York City, a gay man whose lover died of AIDS used a rent-control regulation to keep an apartment from which his landlord had tried to evict him. The man, Miguel Braschi, had lived with his lover, Leslie Blanchard, in the apartment for eleven years, but Braschi's name had never appeared on any lease, and on that basis the landlord began the eviction proceeding. In response, Braschi turned to a rent-control provision stating that a landlord may not dispossess "either the surviving spouse of the deceased tenant or some other member of the deceased tenant's family who has been living with the tenant." He argued that he and Blanchard had been "family" to one another. The New York Court of Appeals, the state's highest court, in a decision of great significance, accepted that argument and ruled in his favor. Three of the court's seven judges explained the decision in this way:
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[T]he term family should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. 6

In a subsequent case, the New York courts extended the Braschi precedent to rent-stabilized as well as rent-controlled apartments.7 (In New York the two categories are entirely distinct.)

Whatever the circumstances, whatever the jurisdiction, and whatever the applicable law, a landlord may evict a tenant only after a court has held a hearing and issued a formal order. The tenant is always entitled to adequate notice of the hearing, as well as an opportunity to participate. If a landlord threatens eviction or actually serves a notice of eviction, legal advice should be sought immediately.

Which places specifically prohibit housing discrimination against lesbians and gay men?

As already mentioned, four states do: Connecticut, Massachusetts,New Jersey, and Wisconsin. So do many cities, both large and small, and a number of counties. The cities include New York, Los Angeles, Chicago, Philadelphia, Seattle, Portland, San Francisco, San Jose, San Diego, Denver, Minneapolis, St. Paul, Milwaukee, Columbus, Pittsburgh, Atlanta, Boston, Hartford, Baltimore, and Washington, D.C. (See Appendix C.)

Another state, California, has a statutethe Unruh Civil Rights Actthe courts have interpreted to outlaw all forms of arbitary discrimination by landlords, including discrimination against lesbians and gay men. 8

At this point, federal law prohibits discrimination in housing only on the basis of race, color, religion, sex, or national origin,9 or on account of "handicap" (including AIDS and HIV infection) or "familial status" (a term intended to protect people with children).10 Eventually, Congress may see fit to add "sexual orientation" to this list.

Can a lesbian or gay man be denied a mortgage on the basis of sexual orientation?

Yes, except in those placesmentioned abovethat have specifically outlawed sexual-orientation discrimination. The personal life of an applicant for a mortgage should be irrelevant to the determination of whether he or she is credit-worthy. But in the past, banks and other lenders, like many employers, have viewed lesbians and gay men as inherently unstable and therefore financially unreliable.

Federal law and many state laws prohibit discrimination in credit on the basis of an applicant's sex or marital status, among other things.11 These other categories may be of value in some cases, depending on the circumstances.

What special concerns arise for lesbians and gay men who own condominiums or lease co-ops?

Condominiums and cooperative apartments present special problems for lesbians and gay men since they both involve ownership interests held in common with the neighbors, who may not be very friendly or sympathetic.

A condominium is a dwellingtypically, but not necessarily an apartmentthat one owns in conjunction with an interest in facilities maintained by all the property owners in the same building or project. A board or members association manages the common areas and makes rules governing life in the building. Although it is also usually run by a board, a cooperative apartment is quite different, at least in theory. The occupant of a "co-op" does not actually own his or her apartment; rather, along with the other tenants in the building, he or she holds stock in the corporation that owns and operates it, and that stock entitles the occupant to a "proprietary lease" to the apartment in question. Co-ops are most common in the Northeast and in Florida.

The law generally allows a condominium or co-op owner at least as much discretion in selecting a buyer as it does an ordinary homeowner. Thus, in most instances, there is little a lesbian or gay man can do to challenge an owner's refusal to sell to him or her, unless there is a statute specifically outlawing housing discrimination on account of sexual orientation.

A lesbian or gay man seeking to sell or transfer, rather than buy, a unit may also encounter difficulties since with most condominiums and co-ops, the board has the right to review the transaction in advance. Often he or she cannot even leave the apartment to a lover under a will without the permission of the boardeven if the other person has been living there. An owner preparing a will with such a clause should either seek the board's prospective approval of the arrangement or try to make the lover a joint owner of the apartment.

Can public-housing programs exclude lesbians and gay men from participation?

Lesbians and gay menat least those who are not parentsare often denied participation in public-housing programs, not because the programs specifically exclude them, but because the government typically gives preference to married couples and people with children. Two women who live together in a loving union may consider themselves "family," but the law, with a few exceptions, sees them only as single, unrelated individuals who happen to occupy the same dwelling. And as single people, they usually fall to the bottom of the eligibility list. 12

Such preferences are unfair and inhumane, and arguably illegal and unconstitutional. The New York Braschi case, described above, indicates that some courts are prepared to extend recognition to gay couples. Precedents like Braschi may be used to broaden participation of lesbians and gay men in government benefit programs of all kinds.

How can lesbians and gay men best protect their housing rights?

1. They should learn the rules that apply in the relevant jurisdiction. All tenants have rights, under statutes and caselaw, but they vary from state to state and city to city. Tenants groups, among others, are often good sources of information.
2. They should get a lease and read it carefully. Among other things to consider is inclusion of other adults in the household on the lease.
3. They should have a will. Unless a person has a will, his or her propertyincluding both real and personal propertywill pass to blood relatives under the state's intestacy laws.
4. They should consult a lawyer if faced with discrimination or threatened with eviction. Knowing one's options and protecting one's interests are well worth the price of an hour's consultation.