Lawsuit Questions Gay Roommate Preference
by Cody Lyon
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
That’s why a recent case in
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
Valley and San Diego against Roommates.com 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
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 Roomates.com 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
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
"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 Roomates.com in New York. Leavy founded his company 12 years ago
to help people find shared housing with a focus that is primarily in the
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
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
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.
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