(CN) - Efforts to settle transgender discrimination charges in Texas could scuttle a case whose precedent many hoped would plug an apparent loophole in the Fair Housing Act.
In October, the Department of Justice filed what advocacy groups believe to have been the first lawsuit of its kind on behalf of Roxanne Joganik, a transgender woman who had been evicted with her partner Darlina Anthony from an RV park in Athens, Texas.
The lawsuit alleges that landlord George Toone prohibited Joganik from wearing women's clothes because "there are children around the pool," and had said that her attire was "not the type of atmosphere we want to promote on private property."
Toone handed Joganik a new set of rules later that month that did not apply anti-discrimination protections based on "sex" or "familial status," as mandated by the Fair Housing Act, the complaint states.
Joganik said she refused to sign unless those protected classes were added.
Toone started trying to evict the couple from the park in early June 2012, and his lawyer referred to Joganik by her birth name and another name she no longer used in a letter of eviction.
"I have been informed that Mr. Pepos is a transgender [sic] who goes by the name Roxann Fanteal," the lawyer wrote, according to the complaint. "Mr. Pepos refused to leave the park despite being asked to do so."
The letter demanded that Jagonik and Anthony leave the park "immediately," purportedly for nonpayment of rent. The couple allegedly replied that they had three more days to pay pursuant to their month-to-month agreement, but said they were refused the opportunity to do so.
Although the U.S. Housing and Urban Development administrative action looked promising, the decks were allegedly stacked against the couple at the Justice of the Peace Court of Henderson County.
"The judge presiding over the eviction action told Ms. Joganik not to talk about her fair housing case and to refrain from using the word 'transgender' in the court," the complaint states.
Jagonik and Anthony were evicted on Aug. 18, 2012, according to the complaint.
An HUD administrative judge authorized them to take the case to federal court on Sept. 4, 2012.
More than a year later, the Justice Department followed through on filing the case, which sought an injunction restoring the couple's housing, barring discrimination against them and awarding them unspecified money damages.
In a scheduling order last month, U.S. Magistrate Judge Nicole Mitchell slated a trial for Dec. 2, 2014, if the case were not resolved through mediation. She ordered the parties to name an agreed mediator, or cite "a reason why the case would not benefit from mediation" by Monday morning.
In a brief proposal filed in the Eastern District of Texas hours before the deadline, Justice Department attorney Lori Wagner noted that it was the belief of the United States that "this case would benefit from mediation."
The proposal asked the court to appoint Tyler, Texas-based lawyer Richard Grainger as a mediator.
Wagner did not immediately reply to an email request for comment.
Toone's attorney has not submitted a related filing, nor has he responded to an email inquiry.
When the case originally was filed, Harper Jean Tobin, the director of policy of the Washington-based nonprofit National Center for Transgender Equality, said that she was not aware of any other case in which the federal government had gone to court over transgender housing discrimination.
While the Fair Housing Act bars discrimination based on "sex" and "familial status," it does not explicitly mention gender identity or expression, but the HUD's website states that it interprets sex discrimination to include bias against nonconformity to gender stereotypes.
Tobin previously called upon the Congress to clarify the Fair Housing Act.
She has not returned a request to comment on the Justice Department's proposal to mediate the case.
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