ST. LOUIS (CN) – A federal judge in Missouri dismissed a lawsuit brought by a lesbian couple who were turned away by a retirement home, finding that the Fair Housing Act does not protect against discrimination based on sexual orientation.
“The Eighth Circuit has squarely held that “Title VII does not prohibit discrimination against homosexuals,” U.S. District Judge Jean Hamilton wrote in a 10-page order Wednesday.
“The court recognizes that several federal courts have held otherwise in recent opinions, concluding that discrimination on the basis of sexual orientation is a form of sex discrimination,” the judge continued. “This court is bound by the law of the Eighth Circuit, however. … To date the Eighth Circuit has not changed its position on the issue, and so the court must dismiss.”
Mary Walsh and Bev Nance sued Friendship Village of South County dba Friendship Village Sunset Hills and FH Services Inc. in July 2018.
Walsh, 72, and Nance, 68, have been in a committed relationship for nearly four decades and were legally married in Massachusetts in 2009. They applied to move into Friendship Village’s retirement community in Sunset Hills, Missouri, after deciding to move from their single-family residence in 2016.
They toured the community, discussed floor plans with staff and submitted their application with a $2,000 deposit. They were later notified that their request was denied because Friendship Village’s cohabitation policy defines marriage as a union between one man and one woman, “as marriage is understood in the Bible.”
Walsh and Nance’s lawsuit claimed Friendship Village discriminated against them due to their sex in violation of the Fair Housing Act, or FHA. They are represented by attorneys from the National Center for Lesbian Rights, civil rights firm Relman, Dane & Colfax PLLC, the American Civil Liberties Union of Missouri, and Arlene Zarembka Esq.
“Planning for senior housing is a big decision, and Mary and Bev chose Friendship Village because it is in their community, they have friends there, and it offers services that would allow them to stay together there for the rest of their lives,” said Julie Wilensky, an attorney with the National Center for Lesbian Rights, in an emailed statement on behalf of her clients.
In their lawsuit, Walsh and Nance claimed they were discriminated against because of their sex, their association with a person of a particular sex, and on the basis of their nonconformity with sex stereotypes.
While the FHA prohibits discrimination on the basis of “race, color, religion, sex, familial status, or national origin,” Judge Hamilton found it does not prohibit discrimination on the basis of sexual orientation.
“Plaintiffs maintain that had Ms. Walsh been a man married to Ms. Nance (or vice versa), she would not have been denied housing at Friendship Village,” Hamilton wrote. “Plaintiffs thus assert they have presented a straightforward case of sex discrimination under the FHA, as but for their sex, plaintiffs would not have been denied housing at Friendship Village.”
The judge continued, “Upon consideration the court rejects this analysis, finding instead that sexual orientation rather than sex lies at the heart of plaintiffs’ claims. … At no time do plaintiffs assert that had they been men involved in a same-sex relationship or marriage, they would have been admitted as residents in Friendship Village. Under these circumstances, the court finds the claims boil down to those of discrimination based on sexual orientation rather than sex alone.”
In the plaintiffs’ statement, their attorney said they disagree with the decision and are weighing their options.
“The discrimination they experienced was very hurtful,” Wilensky said. “If Mary were a man married to Bev, instead of a woman married to Bev, Friendship Village would not have turned them away. This is a straightforward example of discrimination ‘because of sex.’”
Friendship Village attorney Bradley Hiles of Husch Blackwell declined to comment in an email Thursday because he hadn’t yet had an opportunity to discuss the ruling with his client.