Q: Are transgender individuals a protected class under the New York City Human Rights Law ("NYCHRL"), which prohibits discrimination against protected classes in housing? What can a landlord or home seller do to ensure that they are in compliance with the NYCHRL?
A: Yes, gender identity, including actual or perceived status as a transgender person, is a protected class under the NYCHRL. As such, discrimination against transgender individuals in housing is prohibited in New York City. According to the NYCHRL, housing is defined as "any building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings."
In December 2015, the New York City Commission on Human Rights ("HRC") released the "Legal Enforcement Guidance on the Discrimination on the Basis of Gender Identity or Expression" (the "HRC Guidance"), which clarifies what constitutes illegal discrimination against transgender individuals under the NYCHRL. According to the HRC Guidance: "It is unlawful to refuse to sell, rent, or lease housing to someone because of their actual or perceived gender, including actual or perceived status as a transgender person. It is unlawful to withhold from any person full and equal enjoyment of a housing accommodation because of their gender." The HRC Guidance lists several examples of violations of the rights of transgender individuals in housing, including: failure to use an individuals preferred pronouns, considering gender when evaluating a request for accommodations, or engaging in discriminatory harassment or retaliation.
In order to ensure compliance with the NYCHRL, the HRC Guidance recommends that landlords and home sellers (collectively, "Covered Entities"):
1. Create a policy of asking everyone their preferred gender pronoun so that no one is singled out for such questions. Covered Entities should also update their systems to allow individuals to self-identify their names and genders. The options for identification should not be limited to male and female only.
2. Implement internal anti-discrimination policies to educate employees and tenants of their rights and obligations under the NYCHRL with respect to gender identity and expression. Covered Entities should also regularly train staff on these issues.
3. Protect tenants from discriminatory harassment. For example, a tenant assaulting or threatening to assault another neighbor because of gender identity violates the NYCHRL. Covered Entities should take all harassment claims seriously.
4. Implement procedures for employees and tenants to internally report discrimination without fear of adverse action. Landlords should train supervisors to handle discrimination reports.
The entire text of the HRC Guidance is available on the HRC’s website.
If the HRC finds that the rights of a transgender individual have been violated it may impose civil penalties of up to $125,000 for violations and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct.
Important Tip: The full list of classes protected from discrimination in housing under the NYCHRL includes: race, religion/creed, color, age, national origin, alienage or citizenship status, gender (including sexual harassment), gender identity, sexual orientation, disability, pregnancy, marital status and partnership status, lawful occupation, the presence of children, and lawful source of income.
The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP