Lawsuit Questions Gay Roommate Preference
by Cody Lyon
EDGE Boston Contributor
Tuesday Jan 30, 2007

Which one would you rather be facing in the kitchen in the morning? A California court may limit your choices.

Which one would you rather be facing in the kitchen in the morning? A California court may limit your choices.  

Everyone knows finding a roommate is an exercise in futility-when it’s not a real-live reality show, "Weirdoes of the World." In New York especially, where rents have reached, as the New York Times put it (in an article about the booming business in private detectives ratting out people renting under false premises), rents have reached "the exosphere," finding a roommate is a not-so-small cottage industry.

That’s why a recent case in
California’s Ninth Circuit Court in Pasadena is raising eyebrows. The case brings up a host of issues about stating specific preferencing in roommate ads, not least of which is sexual orientation.

The suit alleges that advertising such preferences is, in fact, discriminatory and violates longstanding and sacrosanct federal Fair Housing statutes. The Fair Housing Council’s of the
San Fernando Valley and San Diego against filed the suit. Although it has yet to be decided, both housing groups have been looking at Craig’s List ads as well.

They’ll probably find plenty to buttress their argument. Craig’s List’s roommate ads have become notorious for the finicky and sometimes downright kinky specifications.

According to the Ninth Circuit lawsuit, if a straight woman were to advertise that she is seeking a gay male roommate, it could be seen as potentially discriminatory towards applicants who aren’t gay males. For the record, Craig’s List posts "stating a discriminatory housing post is illegal" at the top of its real estate pages.

On any given day in
New York, however, a city that is universally acknowledged to be bursting at the seams, thousands of people are looking for a place to live. For those without the means to afford their own space-and in New York’s hyperinflated real estate market-that includes many, many more souls than anywhere else in the United States-finding a roommate with an apartment and lease is often their only hope.

Among all those people looking for someone in possession of the Holy Grail of a rent-stabilized lease are a large number of gay folks. As in other major cities, gay men (and lesbians) have resources by which to pick and choose, and hopefully find, the perfect living arrangement. With the explosion of Internet bulletin boards like Craig’s List, the shopping has gotten even easier and the criteria more clear for an apartment holder looking for a roommate.

Recently, a closer look at the "rooms and shared" section of Craig’s List’s
New York real estate section found some 200 ads looking for roommates who were either gay or "gay friendly." Of those, some 35 stated specifically that future gay occupants were preferred. Most of the ads spelled out typical rules of the house including financial requirements, cat friendly, no drugs, neat, etc.

The California case raises legal and social questions that intersect individual privacy concerns, the First Amendment and laws meant to protect everyone from discrimination. In a strange irony, the case highlights how groups that have themselves been the historical victims of discrimination-like gays-can themselves be discriminatory. But the case may also highlight legal loopholes by which someone can state exactly who he or she will or will not live with.

The 1968 Fair Housing Act has a provision called the "Mrs. Murphy" rule that allows owners who rent fewer than three units in homes they occupy some leeway in who they rent to. There are different rules for apartments verses roommates. And advertising throws an entire page of other glitches into the mix.

"If you live in your house where you have an apartment, you can pick and choose who you want in your apartment’ according to Betsy Herzog, director of public information at the New York City Commission on Human Rights. But once advertising is utilized, the rules change. "If I advertise that apartment, and I say that I don’t want a black, a Jew or a gay guy, that would be discrimination," she noted.

So what about a man in
Chelsea who wants another Chelsea man to join him in an apartment he holds the lease on?

"You as an individual have a right to advertise and pick and choose who you want as a roommate" Herzog said.

Groups that have themselves been the historical victims of discrimination may be discriminatory.

This leeway is given since apartments by their very nature, are close and private living quarters. But, the California case calls out and the ads themselves not the individuals posting them.

Interestingly, since the ads were posted online and not in a print publication, they are more than likely immune from legal recourse thanks to the Communications Decency Act of 1996. "In the early days of the Internet, a lobby of companies such as Compu-Serve and AOL among them, were trying to find a way to immunize platform owners from liability from whatever some third party posted onto a site" noted Tonda Rush, director of public policy of the National Newspapers Association.

According to Rush, the Internet company’s logic went like this: If they were going to be sued every time somebody posted something objectionable or libelous, pretty soon there wouldn’t be any Web sites at all, which would then chill free speech. This includes advertising.

Newspapers, on the other hand, because they are print, are subject to traditional common laws expressly libel which prevents the publication of ads such as those that might state a preference for a gay male roommate. The irony is, the newspaper can take the exact same ad and run it on its website, worry free, thanks to the CDA of 1996.

"Websites don’t accept liability any more than the phone company would be liable if I said something defamatory on the phone with you now" said Rush. Although advertising an individual preference for a gay male or a lesbian roommate may not make it into print, the reality is that many gays openly shop for them online and through other venues.

Legalese aside, what are some real life reasons that might justify a gay persons open quest for another gay person as a housemate?

"It comes down to feeling comfortable and safe in your own home, without having to worry about any sort of gay bashing or hiding your sexuality said Douglas M Leavy, director of operations at Rainbow in New York. Leavy founded his company 12 years ago to help people find shared housing with a focus that is primarily in the gay community.

Leavy himself is quick to point out that his agency is open to all people, regardless of sexual orientation. Perhaps it’s the Rainbow that alerts potential customers to who he caters.

Of his clientele, Leavy said men are more likely to request male roommates and females tend to be more open. He’s also noted an increase in people open to the idea of living in mixed households of gay-straight co-habitation. Leavy notes that in
New York, the line between gay and straight is stretching as attitudes about sexuality in the city have, and continue to, evolve. "It has progressed," he said. "More people say they have no preference."

Leavy does add that gay men may share more traits or have common interests than what one would find among heterosexual male apartment dwellers: Call it the "Queer Eye Factor." For instance, gay men often have "particular tastes about how an apartment looks, aesthetic issues" going on to say that gay households "are typically better furnished."

Another real estate agent, Colin Westbrook, noted that gay men tend to be savvier, but they can also be more picky and demanding. Westbrook, vice president of sales at Citadel Property Management, said
New York’s gay men also tend to also be more resourceful. "They can figure out how to get apartments and bypass the broker stage," said Westbrook.

Leavy says the biggest issue among his roommate-seeking clients, of which around 80 percent are gay males, is matching maturity. "You have some gay men who’ve gone through the party stage, had their fun" and "older more settled men often don’t want to go through all of that again" he said.

Basically, gay men encounter many of the same real estate issues that straight people do in a city where finding any livable real estate is so difficult. More than likely, ads will continue to run that allow individuals to pick and choose individuals they feel most comfortable sharing, what are often cramped quarters, in a very challenging real estate market. Still, the ruling of the Ninth Circuit-or even the Supreme Court, which could conceivably take up an appeal-may have an effect on whether you’re going to have to at least interview that straight, beer-drinking, football-watching dude.

Cody Lyon is a New York freelance writer whose work has appeared in a number of national daily newspapers and New York weeklies. Lyon also writes a political opinion blog at




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