Amicus Curiae Brief — West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson

Supreme Court briefNov 17, 2025

Ask Donna

What actually matters in this document.

Text

No. 24-43

IN THE

Supreme Court of the United States

————

STATE OF WEST VIRGINIA, ET AL., PETITIONERS,

B.P.J., BY HER NEXT FRIEND AND MOTHER,

HEATHER JACKSON, RESPONDENT.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

BRIEF OF AMICUS CURIAE

NATIONAL FAIR HOUSING ALLIANCE

IN SUPPORT OF RESPONDENT

————

GLENN SCHLACTUS

ALEXA MILTON

MIRIAM PIERSON

RELMAN COLFAX PLLC

1225 19th St. NW,

Ste. 600

Washington, DC 20036

JANELL M. BYRD

SASHA SAMBERG-CHAMPION

Counsel of Record

NATIONAL FAIR

HOUSING ALLIANCE

1331 Pennsylvania Ave.

NW, #650

Washington, DC 20004

(202) 898-1661

ssamberg-champion@

nationalfairhousing.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT................................................................ 4

Bostock’s Understanding of Sex Discrimination

Applies to Title IX. ............................................. 4

II. Petitioners’ Arguments for Why Bostock Should

Not Apply Under Title IX Are Inapplicable

to the Fair Housing Act and ECOA. ............... 10

The Fair Housing Act Is Like Title

VII. ............................................................ 11

The Fair Housing Act is Properly

Interpreted in Keeping with

Title VII. ............................................ 11

The Fair Housing Act is Like

Title VII in All the Ways

Petitioners Claim Title IX is Not. .... 12

The Equal Credit Opportunity Act is

Like Title VII. ........................................... 20

III. Housing Discrimination Against LGBTQ

People is a Significant Problem. ..................... 21

CONCLUSION .......................................................... 28

TABLE OF AUTHORITIES

Cases

Page(s)

431 E. Palisade Ave. Real Est., LLC v.

City of Englewood,

977 F.3d 277 (3d Cir. 2020) ................................. 14

2922 Sherman Ave. Tenants’ Ass’n v.

D.C.,

444 F.3d 673 (D.C. Cir. 2006) .............................. 12

Akridge v. Alfa Ins. Cos.,

93 F.4th 1181 (11th Cir. 2024) .......................... 7, 8

Asbury v. Brougham,

866 F.2d 1276 (10th Cir. 1989) ............................ 12

Badami v. Flood,

214 F.3d 994 (8th Cir. 2000) ................................ 12

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) ............................ 2, 5, 6, 10, 20

Burrage v. United States,

571 U.S. 204 (2014) ................................................ 6

Carter v. United States,

530 U.S. 255 (2000) ................................................ 2

City of Edmonds v. Oxford House, Inc.,

514 U.S. 725 (1995) .............................................. 19

Cmty. House, Inc. v. City of Boise,

490 F.3d 1041 (9th Cir. 2007) .............................. 12

iii

Comcast Corp. v. Nat’l Ass’n of Afr. Am.Owned Media,

589 U.S. 327 (2020) ........................................ 2, 5, 6

Consumer Fin. Prot. Bd. v. Townstone

Fin., Inc.,

107 F.4th 768 (7th Cir. 2024) .............................. 21

Crane v. Utah Dep’t of Corr.,

15 F.4th 1296 (10th Cir. 2021) .............................. 7

Doe v. R.I. Interscholastic League,

137 F.4th 34 (1st Cir. 2025) ................................... 7

Durrett v. Hous. Auth. of City of

Providence,

896 F.2d 600 (1st Cir. 1990) ................................ 12

EEOC v. LHC Grp., Inc.,

773 F.3d 688 (5th Cir. 2014) .................................. 7

Equal Emp. Opportunity Comm’n v.

Miss. Coll.,

626 F.2d 477 (5th Cir. 1980) ................................ 12

Fox v. Gaines,

4 F.4th 1293 (11th Cir. 2021) .............................. 12

Gentry v. E. W. Partners Club Mgmt.

Co.,

816 F.3d 228 (4th Cir. 2016) .............................. 7, 8

Gilead Cmty. Servs., Inc. v. Town of

Cromwell,

112 F.4th 93 (2d Cir. 2024) .................................. 14

Gozlon-Peretz v. United States,

498 U.S. 395 (1991) .............................................. 15

Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971) .................................... 6, 7

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) .............................................. 10

Haberle v. Troxell,

885 F.3d 170 (3d Cir. 2018) ................................... 7

Hall v. Greystar Mgmt. Servs., L.P.,

637 F. App’x 93 (4th Cir. 2016)............................ 12

Hollis v. Chestnut Bend Homeowners

Ass’n,

760 F.3d 531 (6th Cir. 2014) ................................ 12

Holmes v. Sec. Inv. Prot. Corp.,

503 U.S. 258 (1992) ................................................ 6

Huntington Branch, N.A.A.C.P. v. Town

of Huntington,

844 F.2d 926 (2d Cir. 1988), aff’d 488

U.S. 15 (1988) ....................................................... 12

Johnson v. Conn. Coal. Against

Domestic Violence,

No. 3:23-cv-1133, 2024 WL 1000730

(D. Conn. Mar. 8, 2024)........................................ 27

Kyles v. J.K. Guardian Sec. Servs., Inc.,

222 F.3d 289 (7th Cir. 2000) ................................ 12

Larocque v. Spring Green Corp.,

No. 22-cv-00249, 2024 WL 4198607

(D.R.I. Sept. 16, 2024) .......................................... 27

Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312 (6th Cir. 2012) .............................. 7, 8

Monroe v. Ind. Dep’t of Transp.,

871 F.3d 495 (7th Cir. 2017) .................................. 8

Murray v. Mayo Clinic,

934 F.3d 1101 (9th Cir. 2019) ............................ 7, 8

Natofsky v. City of New York,

921 F.3d 337 (2d Cir. 2019) ............................... 7, 8

Oehmke v. Medtronic, Inc.,

844 F.3d 748 (8th Cir. 2016) .................................. 8

Resident Advisory Bd. v. Rizzo,

564 F.2d 126 (3d Cir. 1977) ................................. 12

Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47 (2007) .................................................. 6

Sch. of the Ozarks, Inc. v. Biden,

41 F.4th 992 (8th Cir. 2022) ................................ 15

Scutt v. Dorris,

No. 20-cv-00333, 2021 WL 206356

(D. Haw. Jan. 20, 2021) ....................................... 27

Tex. Dep’t of Hous. & Cmty. Affs. v.

Inclusive Cmtys. Project, Inc.,

576 U.S. 519 (2015) .................................. 11, 12, 19

Trafficante v. Metro. Life Ins. Co.,

409 U.S. 205 (1972) .............................................. 11

United States v. SSM Props., LLC,

619 F. Supp. 3d 602 (S.D. Miss.

2022) ..................................................................... 27

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ...................................... 5, 7, 10

Walsh v. Friendship Vill. of S. Cnty.,

No. 19-1395, 2020 WL 5361010 (8th

Cir. July 2, 2020) .................................................. 27

Statutes

5 U.S.C. § 2302 ............................................................ 9

15 U.S.C. § 1691 et seq. ..................................... 2, 9, 20

20 U.S.C. § 1071(a)(2) ................................................. 9

20 U.S.C. § 1681 et seq. ............................. 5, 14, 15, 20

22 U.S.C. § 2314(g)(1).................................................. 9

29 U.S.C. § 623(b) ........................................................ 9

42 U.S.C. § 290ff-1(e)(2) .............................................. 9

42 U.S.C. § 2000e-16a ................................................. 9

42 U.S.C. § 3601 et seq. ......................... 2, 3, 15, 16, 19

42 U.S.C. § 6102 .......................................................... 9

42 U.S.C. § 12101 et seq. ......................................... 7, 9

vii

47 U.S.C. § 1726 .......................................................... 9

49 U.S.C. § 40127 ........................................................ 9

Pub. L. 92-318, Title IX, 86 Stat. 236

(June 23, 1972) ..................................................... 17

Pub. L. No. 93-383, § 808, 88 Stat. 633

(August 22, 1974) ................................................. 16

34 R.I. Gen. Laws § 34-37-2 (2025) ........................... 27

775 Ill. Comp. Stat. 5 (2025) ..................................... 27

Cal. Gov. Code § 12955 (2025) .................................. 26

Colo. Rev. Stat. § 24-34-502 (2025) ........................... 26

Conn. Gen. Stat. § 46a-64c ........................................ 26

D.C. Code § 2-1402.21 ............................................... 27

Del. Code Ann. Tit. 6, § 4603 (2025) ......................... 26

Haw. Rev. Stat. § 515-3 ............................................. 27

Iowa Code § 216.8 (2025) .......................................... 27

Mass. Gen. Laws Ch. 151B (2025) ............................ 27

Md. Code Ann., State Gov’t § 20–705

(West 2025)........................................................... 27

Me. Stat. Tit. 5, § 4581-A (2025) ............................... 27

Mich. Comp. Laws § 37.2102 (2025) ......................... 27

Minn. Stat. § 363A.09 (2025) .................................... 27

viii

N.H. Rev. Stat. Ann. § 354-A .................................... 27

N.J. Stat. Ann. § 10:5-4 (2025).................................. 27

N.M. Stat. Ann. § 28-1-7.G (West 2025) ................... 27

N.Y. Exec. Law § 296.2-a (McKinney

2025) ..................................................................... 27

Nev. Rev. Stat. § 118.100 (2025) ............................... 27

Or. Rev. Stat. § 839-005-0205 (2025) ........................ 27

Utah Code Ann. § 57-21-5 (2025).............................. 27

Va. Code Ann. § 36.96.3 (2025) ................................. 27

Vt. Stat. Ann. Tit. 9, § 4503 ...................................... 27

Wash. Rev. Code Ann. § 49.60.222

(2025) .................................................................... 27

Wis Stat. § 106.50 (2025) .......................................... 27

Other Authorities

119 Cong. Rec. 20263–64 (June 19,

1973) (statement of Senator Tower) .................... 17

119 Cong. Rec. 30922–23 (Sept. 21,

1973) (statement of Senator Tower) .................... 17

119 Cong. Rec. 30923 (Sept. 21, 1973)...................... 18

120 Cong. Rec. 6124 (Mar. 11, 1974)

(statement of Senator Brock)............................... 16

40 Fed. Reg. 20053 (May 8, 1975) ............................. 18

53 Pa. Bull. 3188 (June 17, 2023) ............................. 26

Adam P. Romero et al., LGBT People

and Housing Affordability,

Discrimination, and Homelessness,

U.C.L.A. L. Sch. Williams Inst., at

14–17, (2020),

https://williamsinstitute.law.ucla.ed

u/wp-content/uploads/LGBTHousing-Apr-2020.pdf

[https://perma.cc/K4QL-HY44] ............................ 24

Alex Montero et al., LGBT Adults'

Experiences with Discrimination and

Health Care Disparities: Findings

from the KFF Survey of Racism,

Discrimination, and Health, Kaiser

Fam. Found. (2024),

https://www.kff.org/racial-equityand-health-policy/lgbt-adultsexperiences-with-discriminationand-health-care-disparities-findingsfrom-the-kff-survey-of-racismdiscrimination-and-health/

[https://perma.cc/Y9RR-6KE4] ............................ 23

Diane K. Levy et al., A Paired-Testing

Pilot Study of Housing

Discrimination Against Same-Sex

Couples and Transgender

Individuals, Urb. Inst. (2017),

https://www.urban.org/sites/defa

ult/files/publication/91486/2017.06.2

7_hds_lgt_final_report_report_finaliz

ed_0.pdf [https://perma.cc/Y6B3D8HF] ................................................................... 22

Fla. Comm’n on Hum. Rels., Sexual

Discrimination (Feb. 3, 2021),

https://fchr.myflorida.com/sexualdiscrimination

[https://perma.cc/6DZV-CSWH]. ......................... 26

J. Shahar Dillbary & Griffin Edwards,

An Empirical Analysis of Sexual

Orientation Discrimination, 86 U.

Chi. L. Rev. 1 (2019),

https://lawreview.uchicago.edu/sites/

default/files/01 Dillbary_ART_PostSA %28KT%29.pdf

[https://perma.cc/9A86-2XN8] ............................. 22

Kan. Hum. Rts. Comm’n, Guidance from

the Kansas Human Rights

Commission on Sex Discrimination

in Employment, Public

Accommodations, and Housing (Sept.

18, 2020), http://www.khrc.net/pdf/

KHRC%20

Guidance%20on%20Sex%20Discrimi

nation%20in%20Employment,%20Pu

blic%20Accommodations,%20and%2

0Housing%20on%20letterhead%20re

v%20dwh.pdf

[https://perma.cc/AP9F-AB6H] ............................ 26

Ky. Hum. Rts. Comm'n, Frequently

Asked Questions: I believe I have

been discriminated against based on

my sexual orientation/gender

identity. Can I file a claim with

KCHR? (accessed Nov. 5, 2025),

https://kchr.ky.gov/About/Pages/FAQ

s.aspx] ................................................................... 26

M.V. Lee Badgett et al., LGBT Poverty

in the United States: A Study of

Differences Between Sexual

Orientation and Gender Identity

Groups, U.C.L.A. L. Sch. Williams

Inst. (2019),

https://williamsinstitute.law.

ucla.edu/wpcontent/uploads/National-LGBTPoverty-Oct-2019.pdf

[https://perma.cc/3U65-2ZLB]. ............................ 23

Memorandum from John Gibbs,

Principal Deputy Assistant Sec'y for

Fair Hous. & Equal Opportunity,

Fair Housing Act Enforcement and

Prioritization of Resources (Sept. 16,

2025),

https://www.consumerfinancialservic

eslawmonitor.com/wpcontent/uploads/sites/880/2025/09/H

UD-memo-Fair-Housing-ActEnforcement-and-Prioritization-ofResources-9.16.2025.pdf

[https://perma.cc/3FM7-HQNY] .......................... 25

xii

Neb. Equal Opportunity Comm'n,

Outreach Initial Inquiry

Questionnaire (accessed Nov. 5,

2025),

https://neoc.nebraska.gov/sites/defau

lt/files/202408/NEOC_webinquiry2024v1_fillable

.pdf [https://perma.cc/ZBG4-VLH7]..................... 26

News Release, Dep't Hous. & Urb.

Dev't, No. 21-021, HUD to Enforce

Fair Housing Act to Prohibit

Discrimination on the Basis of

Sexual Orientation and Gender

Identity (Feb. 11, 2021),

https://archives.hud.gov/news/2021/p

r21-021.cfm [https://perma.cc/Z5SXBCWG] .................................................................. 25

Ohio Civil Rts. Comm'n, Discrimination

based on Sexual Orientation and

Gender Identity (archived Dec. 17,

2021),

https://web.archive.org/web/2021121

7171914/https:/www.crc.ohio.gov/Fili

ngaCharge/LGBTQ.aspx ...................................... 26

xiii

Press Release, Ariz. Att’y Gen.,

Attorney General Mayes Announces

Fair Housing Act Settlement

between LGBTQ Customers and

Mortgage Company (Apr. 18, 2023),

https://www.azag.gov/pressrelease/attorney-general-mayesannounces-fair-housing-actsettlement-between-lgbtq-customers

[https://perma.cc/MH53-VHEJ] ........................... 25

Press Release, N.D. Dep’t Lab. & Hum.

Rts., NDDOLHR Now Accepting and

Investigating Charges of

Discrimination Based on Sexual

Orientation and Gender Identity

(June 18, 2020),

https://web.archive.org/web/

20250331211354/https://www.nd.

gov/labor/news/nddolhr-nowaccepting-and-investigating-chargesdiscrimination-based-sexualorientation-and..................................................... 26

Press Release, U.S. Census Bureau,

Nearly Half of Renter Households

Are Cost-Burdened, Proportions

Differ by Race (Sept. 12, 2024),

https://www.census.gov/

newsroom/press-releases/

2024/renter-households-costburdened-race.html

[https://perma.cc/MA54-RVYA]. .......................... 24

xiv

Pub. Religion Rsch. Inst., Views on

LGBTQ Rights in All 50 States:

Findings from PRRI’s 2023

American Values Atlas (Mar. 12,

2024),

https://prri.org/research/views-onlgbtq-rights-in-all-50-states/

[https://perma.cc/XMU5-MNNK]......................... 27

Robert G. Schwemm, Housing

Discrimination Law & Litigation §

11C:1 (2025) ......................................................... 27

Samantha Friedman et al., An Estimate

of Housing Discrimination Against

Same-Sex Couples, Dep't Hous. &

Urb. Dev't (2013),

[http://perma.cc/5KXM-T6YZ] ............................. 22

Visalli et al., Why Are There Gaps in

LGBTQ+ Homeownership, Urb. Inst.

Rsch. Report (2023),

https://www.urban.org/sites/default/f

iles/202402/Why_Are_There_Gaps_in_LGBT

Q%2B_Homeownership.pdf

[https://perma.cc/B73M-SRXU] ........................... 23

Zillow Grp., Survey: Most LGBTQ+

Individuals Experience

Discrimination in Housing (June 11,

2024), https://www.zillowgroup.com/

news/most-lgbtq-experiencediscrimination-in-housing/

[https://perma.cc/EJU3-CJJ5] ............................. 21

INTEREST OF AMICUS CURIAE1

National Fair Housing Alliance (“NFHA”) is a

national 501(c)(3) non-profit organization dedicated

to ending discrimination and ensuring equal

opportunity in housing for all people, including the

LGBTQ community. Founded in 1988, NFHA is a

consortium of 200 private, non-profit fair housing

organizations and state and local civil rights

agencies from throughout the United States. NFHA

strives to eliminate housing discrimination and

ensure equal housing opportunities for all people

through initiatives focused on education and

outreach, member services, public policy, advocacy,

housing and community development, consulting and

compliance, responsible AI, and enforcement.

Relying on the federal, state, and local fair housing

laws, including the federal Fair Housing Act, NFHA

undertakes important enforcement initiatives in

cities and states across the country and participates

as amicus curiae in other cases to further its goal of

achieving equal housing opportunities for all.

Preserving the Fair Housing Act’s protections based

on sexual orientation and gender identity is critical

to NFHA’s mission.

1 Pursuant to Rule 37.6, Amicus affirms that no counsel for any

party authored this brief in whole or in part, and no person or

entity other than Amicus, its members, and its counsel has

made a monetary contribution to support the brief’s preparation

or submission.

SUMMARY OF ARGUMENT

This case is not about housing discrimination.

But one of the questions presented concerns how to

understand

prohibition—one

against

sex

discrimination—found in dozens of federal civil

rights statutes, including statutes that address

housing. Among these are the Fair Housing Act, 42

U.S.C. § 3601 et seq. (“FHA”), and the Equal Credit

Opportunity Act, 15 U.S.C. § 1691 et seq. (“ECOA”).

The most obvious and sensible way to construe

what sex discrimination means across civil rights

statutes is to do so consistently. Any departure from

a consistent understanding should be limited to

particular statutes and contexts where Congress

clearly called for a different approach. That means

the starting point for determining the meaning of sex

discrimination under any civil rights statute must be

Bostock v. Clayton County, 590 U.S. 644 (2020),

which held that “discrimination based on

homosexuality or transgender status necessarily

entails discrimination based on sex,” id. at 669, and

“has always been prohibited by Title VII’s plain

terms,” id. at 662. As for today’s case, Congress did

not clearly indicate a different meaning for Title IX.

Text is the primary source of a statute’s meaning,

see, e.g., Carter v. United States, 530 U.S. 255, 271

(2000) (“[i]n analyzing a statute, we begin by

examining the text”), and the textual distinction

identified by Petitioner (“because of” sex in Title VII

versus “on the basis of” sex in Title IX) is not

meaningful, see Comcast Corp. v. Nat’l Ass’n of Afr.

Am.-Owned Media, 589 U.S. 327, 335–36 (2020)

(describing both “on the basis of” and “because of” as

strongly suggestive of the same but-for causation

standard).

Petitioners nonetheless assert that a series of

qualities specific to Title IX counsel against applying

Bostock here. While these arguments provide no

sound reason to unmoor Title IX from Title VII with

respect to the meaning of sex discrimination, their

logic in any event extends no further than Title IX.

For the FHA and ECOA, it cuts the other way. These

statutes should not be swept up in any limitation the

Court may place on the reach of Bostock in resolving

the instant question about the scope of Title IX.

Starting

with

the

textual

difference

Petitioners point to between Title VII and Title IX,

the FHA’s “because of” language mirrors that of Title

VII. 42 U.S.C. §§ 3604(a), (b), (d), 3605(a). Like Title

VII, the FHA contains no analog to Title IX’s

exceptions permitting sex separation in certain

settings. The FHA’s legislative history does not

suggest Congress understood differences between the

sexes as any more relevant to housing than to

employment. The FHA’s implementing regulations

do not allow for sex distinctions in housing. And like

Title VII, the FHA is a broad remedial statute, not a

limitation placed only on recipients of federal funds.

Petitioners claim that these are all important

distinctions between Title VII and Title IX; if so, they

are equally important distinctions between the FHA

and Title IX. This leaves no doubt that for Title VII

and the FHA sex discrimination means the same

thing. The same is true for ECOA—there is no

indication Congress meant a person’s sex to be

relevant to creditworthiness in any circumstance.

The scale of housing discrimination against

transgender and other LGBTQ people makes it

especially important not to call into question their

protections under the FHA and ECOA. Just last

year, Zillow found that 79% of LGBTQ people

reported experiencing housing discrimination based

on their identity. Studies show that they face

prejudice when trying to rent a home, are more likely

to be denied when applying for a mortgage to buy a

home, and are charged more when approved for a

mortgage. The harm of this discrimination is

heightened because the LGBTQ population is at high

risk for housing instability—LGBTQ people are

likelier to live in poverty and experience

homelessness, and less likely to own their home.

Americans overwhelmingly support laws protecting

LGBTQ people from housing discrimination.

The Court should apply Bostock and find that

discrimination based on gender identity constitutes

sex discrimination in violation of Title IX. And, in

any event, it should leave questions about Bostock’s

application under other civil rights statutes like the

FHA and ECOA for cases arising under those

statutes.

ARGUMENT

Bostock’s

Understanding

Discrimination Applies to Title IX.

Sex

Petitioners assert that the Fourth Circuit

erred by applying “[r]easoning from Bostock” in the

Title IX context. Pet’rs’ Br. 17. Bostock held that

discrimination because a person is transgender is

necessarily discrimination “because of” sex under

Title VII. The Court reasoned that sex is always a

“but-for” cause of a decision premised on a person’s

transgender status, and Title VII liability is based on

the “traditional but-for causation standard.” 590 U.S.

at 657, 660.

To avoid the same conclusion under Title IX,

Petitioners argue that Title IX incorporates a more

exacting sole causation standard. Pet’rs’ Br. 19–20,

29. In support, they point to the text of Title IX’s

antidiscrimination

mandate,

which

prohibits

discrimination “on the basis of sex.” 20 U.S.C.

§ 1681(a). They argue that, while Title VII’s

prohibition on discrimination “because of” sex

“requires mere but-for causation,” Title IX’s use of

the definite article “the” before “on the basis of”

signals a stricter causation standard, requiring that

“sex must be the sole reason for invidious

discrimination.” Pet’rs’ Br. 19–20, 29. They cite no

precedent interpreting “on the basis of” in this

manner, nor could they. Their interpretation flies in

the face of this Court’s instructions regarding the

causation standards of antidiscrimination statutes,

its own usage of the phrase “on the basis of,” and

robust precedent in the courts of appeals

interpreting this exact language.

This Court has instructed that but-for

causation “supplies the ‘default’ or ‘background’ rule

against which Congress is normally presumed to

have legislated when creating its own new causes of

action.” Comcast Corp., 589 U.S. at 332 (quoting

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

347 (2013)). Congress is “presumed to have

incorporated” these rules, “absent an indication to

the contrary in the statute itself.” Nassar, 570 U.S.

at 347. And nothing in “on the basis of” indicates any

departure from the but-for standard. In fact, the

Court has expressly described the phrase “on the

basis of”—the very Title IX language at issue here—

as “language (again) strongly suggestive of a but-for

causation standard.” Comcast Corp., 589 U.S. at 335.

The Court has arrived at similar conclusions

regarding other variants in statutory causation

language. See, e.g., Burrage v. United States, 571

U.S. 204, 213 (2014) (“Our insistence on but-for

causality has not been restricted to statutes using

the term ‘because of.’ We have, for instance, observed

that in common talk, the phrase ‘based on’ indicates

a but-for causal relationship.” (cleaned up)); Holmes

v. Sec. Inv. Prot. Corp., 503 U.S. 258, 265–66 (1992)

(equating “by reason of” with “ ‘but for’ cause”);

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63, 64 n.

14 (2007) (noting that “because of” means “based on”

and that “ ‘based on’ indicates a but-for causal

relationship”).

The functional equivalence of “on the basis of”

and “because of” is reinforced by this Court’s own

usage of the phrases as interchangeable. In

numerous opinions, this Court has described claims

brought under Title VII (and its “because of”

language) as being claims about discrimination “on

the basis of” a prohibited characteristic. It described

plaintiffs in Bostock, for example, as having “brought

suit under Title VII alleging unlawful discrimination

on the basis of sex.” Bostock, 590 U.S. at 654

(emphasis added); see also id. at 709 (Alito, J.,

dissenting) (observing that “the concept of

discrimination ‘because of,’ ‘on account of,’ or ‘on the

basis of’ sex was well understood” at the time of Title

VII’s passage). In Griggs v. Duke Power Co., the

Court proclaimed that Title VII required “the

removal of artificial, arbitrary, and unnecessary

barriers to employment when the barriers operate

invidiously to discriminate on the basis of racial or

other impermissible classification.” 401 U.S. 424, 431

(1971) (emphasis added). In Nassar, the Court noted

that “Title VII defines the term ‘unlawful

employment practice’ as discrimination on the basis

of any of seven prohibited criteria[.]” 570 U.S. at

359–60 (emphasis added).

Finally, in contending that “on the basis of”

signals a sole causation requirement, Petitioners fail

to account for the many decisions from the courts of

appeals interpreting the causation standard required

by antidiscrimination statutes employing this

language. Numerous courts of appeals have

addressed the question, largely in the context of

Titles I and III of the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12111–65, 12181–89, which

prohibit discrimination “on the basis of” disability in

employment

and

public

accommodations

respectively. None require that a plaintiff prove sole

causation.2 Indeed, several courts of appeals have

2 Most have concluded that “on the basis of” signals a but-for

standard. See Doe v. R.I. Interscholastic League, 137 F.4th 34,

41 (1st Cir. 2025); Natofsky v. City of New York, 921 F.3d 337,

349–50 (2d Cir. 2019); Haberle v. Troxell, 885 F.3d 170, 179 (3d

Cir. 2018); Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d

228, 235–36 (4th Cir. 2016); Lewis v. Humboldt Acquisition

Corp., 681 F.3d 312, 314–21 (6th Cir. 2012); Murray v. Mayo

Clinic, 934 F.3d 1101, 1107 (9th Cir. 2019); Crane v. Utah Dep’t

of Corr., 15 F.4th 1296, 1313 (10th Cir. 2021); Akridge v. Alfa

Ins. Cos., 93 F.4th 1181, 1192 (11th Cir. 2024). A few have

reserved the question or applied a looser motivating factors

standard. See EEOC v. LHC Grp., Inc., 773 F.3d 688, 702–03

considered whether a 2008 amendment changing the

causation language in Title I of the ADA from

“because of” to “on the basis of” required any

departure from the but-for causation standard each

had been applying; they uniformly concluded that

there was no meaningful difference between the two

phrases. See Natofsky v. City of New York, 921 F.3d

337, 349 (2d Cir. 2019) (“ We find no reason to hold

that there is any meaningful difference between ‘on

the basis of,’ ‘ because of,’ or ‘ based on,’ which would

require courts to use a causation standard other than

‘ but-for ’ ”); Gentry v. E. W. Partners Club Mgmt. Co.,

816 F.3d 228, 235–36 (4th Cir. 2016) (“We see no

‘meaningful textual difference’ between [‘on the basis

of ’] and the terms ‘because of,’ ‘by reason of,’ or

‘ based on.’ ”); Murray v. Mayo Clinic, 934 F.3d 1101,

1106 n.6 (9th Cir. 2019) (“We find no meaningful

textual difference in the two phrases with respect to

causation.”); Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312, 315 (6th Cir. 2012) (en banc) (“Later

amendments to the ADA [to replace ‘ because of ’

with ‘on the basis of ’] do not change things.”);

Akridge v. Alfa Ins. Cos., 93 F.4th 1181, 1192 (11th

Cir. 2024) (“[T]he switch from ‘ because of ’ to ‘on the

basis of ’ . . . did not change or affect [Title I’s] but-for

causation standard.”).

In light of this history, any decision here

holding that “on the basis of” in Title IX requires

(5th Cir. 2014) (allowing for a “motivating factor” causation

standard); Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 504

(7th Cir. 2017) (reserving the question but applying a “but-for”

causation standard); Oehmke v. Medtronic, Inc., 844 F.3d 748,

757 n.6 (8th Cir. 2016) (reserving the question).

something stricter than but-for causation would

disrupt a significant settled body of law and could

have a far-reaching effect not just on Title IX but on

the other antidiscrimination statutes employing the

same language, of which there are many.3 Instead,

the phrase “on the basis of” in Title IX should be

interpreted congruently with the interpretation of

the same phrase in other statutes: as encompassing

a causation standard no stricter than but-for

causation. Because Title IX should be understood to

prohibit any action for which sex was a but-for cause,

the reasoning of Bostock applies here.

The United States resists this conclusion in a

different way, by arguing that it is unnecessary to

consider whether Bostock’s understanding of sex

discrimination applies to Title IX because there has

been no sex discrimination against Respondent, only

equal treatment of her. Not so. Respondent’s school

excluded her from the girls’ team “on the basis of”

her (male) sex assigned at birth; this dispute would

not have arisen had she been assigned the female sex

3 See, e.g., 15 U.S.C. § 1691(a)(1) (ECOA);

42 U.S.C. §§ 12111–

65, 12181–89 (Titles I and III of the Americans with Disabilities

Act); 42 U.S.C. § 6102 (Age Discrimination Act of 1975); 29

U.S.C. § 623(b) (Age Discrimination in Employment Act,

Employment Agency Practices); 5 U.S.C. § 2302 (Merit System

Principles, Prohibited Personnel Practices); 42 U.S.C. § 2000e16a (Government Employee Rights Act of 1991); 20 U.S.C. §

1071(a)(2) (The Federal Family Education Loan Program); 42

U.S.C. § 290ff-1(e)(2) (Title V of the Public Health Service Act

(as amended in 1992)); 22 U.S.C. § 2314(g)(1) (Foreign

Assistance Act (as amended in 1976)); 47 U.S.C. § 1726 (Digital

Equity Act of 2021); 49 U.S.C. § 40127 (Air Commerce and

Safety; Prohibitions on Discrimination).

at birth. That is, on its face, differential treatment

based on sex, regardless of whether one accepts the

premise that the exclusive meaning of “sex” in Title

IX is biological sex assigned at birth.

II.

Petitioners’ Arguments for Why Bostock

Should Not Apply Under Title IX Are

Inapplicable to the Fair Housing Act and

ECOA.

If the Court nonetheless agrees with

Petitioners’ distinction between Title VII and Title

IX, it should not attempt to answer a broader

question about the proper interpretation of

prohibitions on sex discrimination in other civil

rights statutes. This Court has recognized the

importance of “restrict[ing] its analysis to the statute

before it and withhold[ing] judgment on the proper

resolution of a case” under a different statute.

Nassar, 570 U.S. at 351. Rather, “[w]hen conducting

statutory interpretation, [the Court] must be careful

not to apply rules applicable under one statute to a

different statute without careful and critical

examination.” Gross v. FBL Fin. Servs., Inc., 557

U.S. 167, 174 (2009) (internal quotation marks

omitted). In Bostock itself, the Court responded to

the concern that “our decision will sweep beyond

Title VII to other federal or state laws that prohibit

sex discrimination” this way: “But none of these

other laws are before us; we have not had the benefit

of adversarial testing about the meaning of their

terms, and we do not prejudge any such question

today.” 590 U.S. at 681. The same is true here. Thus,

any decision by the Court about the applicability of

Bostock to Title IX should only apply to Title IX,

which is the only anti-sex discrimination statute

before the court.

There is particularly good reason for this with

respect to the FHA and ECOA. To the extent this

Court agrees that there are meaningful distinctions

between Title VII’s and Title IX’s sex-discrimination

bars, as explained below, the FHA and ECOA are

more like Title VII than Title IX.

A. The Fair Housing Act Is Like Title VII.

1. The Fair Housing Act is Properly

Interpreted in Keeping with Title VII.

The Court has held that discrimination

because of “sex” under Title VII necessarily includes

discrimination because a person is transgender (or

gay or lesbian); thus, Petitioners’ argument

necessarily focuses on distinguishing Title IX from

Title VII. While the distinctions they point to do not

create a meaningful difference even between Title

VII and Title IX, they are non-existent with regard to

Title VII and the Fair Housing Act.

This Court, as well as the courts of appeals,

have long looked to Title VII for guidance in

interpreting the Fair Housing Act. Decisions under

Title VII have been significant sources of guidance

for this Court in answering questions about the scope

of standing, the viability of disparate impact theories

of liability, and other issues under the FHA. See, e.g.,

Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209

(1972) (standing); Tex. Dep’t of Hous. & Cmty. Affs. v.

Inclusive Cmtys. Project, Inc., 576 U.S. 519, 530–33

(2015) (citing Griggs, 401 U.S. 424) (disparate

impact). As this Court recognized in Inclusive

Communities, cases interpreting Title VII often

“provide essential background and instruction” in

deciding Fair Housing Act issues. 576 U.S. at 533.

Indeed, every circuit court has relied on Title VII

precedent when interpreting the Fair Housing Act.

See, e.g., Durrett v. Hous. Auth. of City of Providence,

896 F.2d 600, 602 n.3 (1st Cir. 1990); Huntington

Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d

926, 935 (2d Cir. 1988), aff’d 488 U.S. 15 (1988);

Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3d

Cir. 1977); Hall v. Greystar Mgmt. Servs., L.P., 637

F. App’x 93, 98 (4th Cir. 2016); Equal Emp.

Opportunity Comm’n v. Miss. Coll., 626 F.2d 477, 482

(5th Cir. 1980); Hollis v. Chestnut Bend Homeowners

Ass’n, 760 F.3d 531, 537 (6th Cir. 2014); Kyles v. J.K.

Guardian Sec. Servs., Inc., 222 F.3d 289, 295 (7th

Cir. 2000); Badami v. Flood, 214 F.3d 994, 997 (8th

Cir. 2000); Cmty. House, Inc. v. City of Boise, 490

F.3d 1041, 1048 n.3 (9th Cir. 2007); Asbury v.

Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989); Fox

v. Gaines, 4 F.4th 1293, 1296 (11th Cir. 2021); 2922

Sherman Ave. Tenants’ Ass’n v. D.C., 444 F.3d 673,

679 (D.C. Cir. 2006).

If the distinctions Petitioners draw create a

meaningful line between Title VII and Title IX, the

Fair Housing Act falls squarely on the Title VII side.

2. The Fair Housing Act is Like Title VII in

All the Ways Petitioners Claim Title IX is

Not.

Petitioners say Titles VII and IX are

fundamentally different because Title VII neither

allows, nor has reason to allow, sex distinctions in

employment, while sex distinctions are both

permitted by Title IX and necessary to achieving its

underlying aims. They state repeatedly that Title IX

prohibits

discrimination

but

permits

“sex

distinctions,” Pet’rs’ Br. 3–4, 17–18, 22–26, and

observe that the statute allows sex separation in

living facilities, certain public colleges, and other

specified contexts, see, e.g., id. at 5, 22 (citing 20

U.S.C §§ 1691(a)(5)–(8), 1686). Title IX permits these

“sex distinctions,” Petitioners say, because of

“inherent differences between men and women,” and

because such distinctions are sometimes “needed to

ensure equal opportunities.” Id. at 4, 22. In

particular, Petitioners emphasize that differences in

sex assigned at birth are “generally irrelevant” to

employment but “critical to athletic fairness.” Id. at

17; see also, e.g., id. at 21 (citing Bostock for general

irrelevance of biological sex to employment); id. at 30

(“Title VII prohibits considering sex in hiring and

firing because those traits are generally irrelevant

there[.]” (emphasis in original)). These differences,

they argue, mean that Bostock’s understanding of

sex discrimination is inapplicable to Title IX.

Petitioners point to six factors as indicia of

these purportedly core distinctions: the text of Title

IX’s antidiscrimination mandate, the statutory

context, the legislative history, “common sense,” the

history of regulatory interpretation of the statute,

and Title IX’s status as an exercise of Congress’s

powers under the Spending Clause. Each of these

factors, they argue, illustrates the difference between

Title VII and Title IX, such that the Court’s

understanding of sex discrimination under the

former in Bostock should not apply to the latter.

These arguments are unconvincing with respect to

Title IX. In the context of the Fair Housing Act,

moreover, each of these factors illustrates that the

FHA falls on the Title VII side of Petitioners’ line.

First, Petitioners point to the text of Title IX’s

antidiscrimination

mandate,

which

prohibits

discrimination “on the basis of sex.” Compared to

Title VII’s prohibition on discrimination “because of

sex,” Petitioners say, Title IX’s “on the basis of”

language signals a stricter causation standard.

Pet’rs’ Br. 19–20, 29. As dubious as the merits of this

argument are for Title IX, as discussed above, it cuts

the other way with respect to the Fair Housing Act,

which uses the same “because of” language as Title

VII. Courts of appeals have understood the phrase in

the FHA as requiring either a but-for causation

standard or a more lenient motivating-factor

causation standard. See, e.g., 431 E. Palisade Ave.

Real Est., LLC v. City of Englewood, 977 F.3d 277,

284 (3d Cir. 2020); Gilead Cmty. Servs., Inc. v. Town

of Cromwell, 112 F.4th 93, 101 (2d Cir. 2024). The

statutory texts, then, provide no basis for

distinguishing Title VII and the FHA.

Second, Petitioners point to surrounding

provisions in Title IX that approve of sex separation

in living facilities, in single-sex colleges, and in

certain activities such as scouting, father-son or

mother-daughter activities, and conferences like

Boys State and Girls State, so long as comparable

activities are provided to both boys and girls. Pet’rs’

Br. 22. They argue that these provisions confirm that

the statute as a whole does not prohibit and in fact

“may embrace sex distinctions when they matter.”

Id. Petitioners state, for example, that the living

facilities provision, 20 U.S.C. § 1686, is framed as an

interpretation of the scope of Title IX’s broad

antidiscrimination mandate, rather than an

exception to it. Id. As Respondent explains, this “gets

it backwards”: these statutory exceptions were added

in the years after Title IX was enacted precisely

because Congress recognized that the original text of

Title IX would have otherwise prohibited these

activities. Resp’t’s Br. 27. But either way, this

provides no basis for distinguishing between Title

VII and the FHA, which does not include any

statutory language authorizing sex distinctions in

housing.4 Where the FHA’s application is limited, it

is on grounds that have nothing to do with sex. See,

e.g., 42 U.S.C. § 3607(b)(4) (an applicant’s history of

drug convictions); id. § 3607(b)(1) (reasonable state

4 Title IX and the Fair Housing Act generally regulate separate

spheres: education and housing. They only overlap in limited

circumstances like college dormitories. Both statutes are

implicated, for instance, when a student is harassed in her

dormitory because of her sexual orientation. When this overlap

occurs, the FHA and Title IX usually work in tandem, with the

more specific rule controlling. For example, the FHA says

nothing about sex segregation in student housing (or any other

housing), while Title IX expressly permits educational

institutions to maintain sex-segregated living facilities. See 20

U.S.C. § 1686. In such cases, enforcement agencies have looked

to the education-specific rules in Title IX, not to the FHA’s

general prohibition on sex discrimination in housing. The

Department of Housing and Urban Development “has never

filed such a charge against a college for sex discrimination

based on a housing policy that is specifically exempted from the

prohibition on sex discrimination in education under Title IX of

the Civil Rights Act.” Sch. of the Ozarks, Inc. v. Biden, 41 F.4th

992, 998 (8th Cir. 2022). This approach is consistent with the

general notion that “a specific provision controls one of a more

general application[.]” Gozlon-Peretz v. United States, 498 U.S.

395, 396 (1991).

and local maximum occupancy restrictions). And

most statutory exemptions in the FHA address the

scope of the statute’s coverage (that is, which

housing is covered by the statute and which is not)

rather than what counts as discrimination where it

does apply. See, e.g., 42 U.S.C. § 3603(b)(2)

(exempting

owner-occupied

one-to-four-unit

properties from most of the FHA’s provisions).

Everywhere the FHA applies, sex distinctions are

prohibited.

Third, Petitioners argue that the legislative

history of Title IX indicates Congress intended to

“allow[] sex distinctions to respect biological

differences.” Pet’rs’ Br. 23. But Respondent correctly

shows that the particular exceptions to the general

rule that sex should be irrelevant under both Title

VII and Title IX do not “undermine the general rule

that sex is otherwise irrelevant”; instead, they

“confirm[] it.” Resp’t’s Br. 30. And even if Petitioners

were correct with regard to Title IX, the legislative

history of the Fair Housing Act, in contrast, does not

provide any such approval of “sex distinctions,”

biology-based or otherwise. The original Fair

Housing Act as passed in 1968 did not cover sex

discrimination, and the Act was amended to add

“sex” to the list of protected characteristics in 1974.

See Housing and Community Development Act of

1974, Pub. L. No. 93-383, § 808, 88 Stat. 633, 728–29

(August 22, 1974). No other changes to the FHA were

made in the 1974 bill. What little legislative history

exists for this amendment indicates that the aim was

to end rampant discrimination against women in

mortgage credit and rental housing, and that the

bill’s sponsors believed that sex was irrelevant to

such transactions. See 120 Cong. Rec. 6124 (Mar. 11,

1974) (statement of Senator Brock); 119 Cong. Rec.

30922–23 (Sept. 21, 1973) (statement of Senator

Tower); 119 Cong. Rec. 20263–64 (June 19, 1973)

(statement of Senator Tower). The statute prohibits

sex-discrimination without exception; unlike in Title

IX, Congress did not carve out particular

circumstances in which sex distinctions are

permissible. The absence of qualifications is

particularly notable because the 1974 FHA

amendment came just two years after Congress

enacted Title IX. See Education Amendments of

1972, Pub. L. 92-318, title IX, 86 Stat. 236, 373–75

(June 23, 1972). Thus, after spending months

debating permissible sex distinctions in education,

Congress chose to reject such distinctions in housing.

Fourth, Petitioners argue that “common

sense” demonstrates Title IX allows for sex

distinctions in sports, because “sex is the most

obvious and well-established characteristic to

determine whether individuals are similarly

situated.” Pet’rs’ Br. 23–24 (quoting Biden v.

Nebraska, 600 U.S. 477, 512 (2023) (Barrett, J.,

concurring)). Therefore, Bostock’s logic cannot apply

to Title IX, they argue, because while sex (including

transgender status) is not relevant to employment, it

is relevant to sports. This is an atextual attempt to

replace the actual test established by the statutorilyauthorized athletics regulations—the provision of

“equal athletic opportunity”—with Petitioners’ own

value judgments and furthermore misunderstands

the

“similarly

situated”

concept

under

antidiscrimination law. See Resp’t’s Br. 35–37, 39–

40. But whatever “common sense” relevance sex

might have to sports, it has none to the questions

with which the Fair Housing Act is concerned, like

the ability to repay a mortgage loan or comply with

the terms of a lease. See, e.g., 119 Cong. Rec. 30923

(Sept. 21, 1973) (quoting a letter of support for the

proposed addition of sex to the Fair Housing Act

from the Federal National Mortgage Association

(Fannie Mae), which supported the change because it

considered sex an “immaterial consideration”).

Fifth, Petitioners argue that Title IX’s

implementing

regulations—authorizing

sex

separation in several settings including sports

teams—support their argument because they were

adopted just three years after Title IX’s enactment.

Pet’rs’ Br. 24–25. These regulations, Petitioners

argue, are a contemporaneous construction of the

statute and thus “authoritative expressions

concerning [Title IX’s] scope and purpose,” and were

subsequently “blessed” by Congress. Id. (quoting N.

Haven Bd. Of Educ. v. Bell, 456 U.S. 512, 535

(1982)). As Respondent explains, these regulations

do not support excluding girls like B.P.J. Resp’t’s Br.

36–38. Even if Petitioners were right as to Title IX,

however, the regulatory history of the Fair Housing

Act is different and provides no basis for such an

argument. The Department of Housing and Urban

Development’s (HUD’s) contemporaneous regulations

implementing the 1974 addition of sex to the statute

merely edited the list of protected characteristics

each time it appeared; the regulations did not

purport to authorize any sex distinctions. In fact,

HUD considered notice and comment unnecessary

because the regulatory amendments were “merely

editorial modifications to reflect the [new]

congressional mandate.” Equal Housing Opportunity

Miscellaneous Amendments, 40 Fed. Reg. 20053,

20079 (May 8, 1975).

Finally, Petitioners argue that, because Title

IX, unlike Title VII, was enacted under Congress’s

Spending Clause authority, a clearer textual

directive is required before a Bostock-like rule may

be applied. Pet’rs’ Br. 31–32. They note that, while

Title VII applies broadly to employers regardless of

receipt of federal funds and aims to “eradicate

discrimination throughout the economy,” Title IX is

focused on preventing “discriminatory practices

carried out by recipients of federal funds.” Id. at 31

(quoting Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 286–87 (1998)). As Respondent explains,

Petitioners are wrong about the effect of the

Spending Clause here (and in any event have waived

that argument). Resp’t’s Br. 30–31 n.12. But here

too, even if Petitioners were correct about this

distinction with regard to Title IX, their argument

only highlights the similarities between the Fair

Housing Act and Title VII. Like Title VII, the FHA

was enacted with a broad societal mandate: “to

provide, within constitutional limitations, for fair

housing throughout the United States.” 42 U.S.C.

§ 3601; see also Inclusive Cmtys. Project, Inc., 576

U.S. at 539 (“The FHA, like Title VII and the ADEA,

was enacted to eradicate discriminatory practices

within a sector of our Nation’s economy.” (citing 42

U.S.C. § 3601; H.R. Rep. No. 100-711, p. 15 (1988))).

And far from the narrow construction Petitioners

assert is required for Title IX, the Court has been

clear that the FHA was adopted with a “‘broad and

inclusive’ compass” that entitles it to a “generous

construction.” City of Edmonds v. Oxford House, Inc.,

514 U.S. 725, 731 (1995) (quoting Trafficante, 409

U.S. at 731)).

B. The Equal Credit Opportunity Act is Like

Title VII.

ECOA bars sex and other types of

discrimination in mortgage and other credit

transactions. See 15 U.S.C. § 1691(a). While both

Title IX and ECOA use the phrase “on the basis of”

in prohibiting sex discrimination, id.; 20 U.S.C. §

1681(a), for the reasons discussed above, this is

immaterial. And with respect to the other differences

Petitioners say set apart Titles VII and IX, like the

FHA, ECOA is squarely on the Title VII side of this

argument.

Any ruling by the Court in Petitioners’ favor

based on Title VII’s and Title IX’s differences should,

accordingly, not prejudge the meaning and

application of “sex” in ECOA, whether directly or by

implication. See Bostock, 590 U.S. at 681 (“But none

of these other laws are before us; we have not had

the benefit of adversarial testing about the meaning

of their terms, and we do not prejudge any such

question today.”).

As discussed above, Petitioners say Titles VII

and IX are fundamentally different because Title IX

prohibits

discrimination

but

permits

“sex

distinctions,” Pet’rs’ Br. 3–4, 17–18, 22–26, which

they say are necessary because of “inherent

differences between men and women,” id. at 4. They

argue that differences in sex as assigned at birth are

“generally irrelevant” to employment but “critical to

athletic fairness.” Id. at 17.

As with the Fair Housing Act, ECOA is like

Title VII—not Title IX—in these respects. The

concept of permitting “sex distinctions” in credit

because of “inherent differences between men and

women” is directly contrary to the very purpose of

ECOA. “Congress stated that the legislation’s

purpose was to ensure ‘that financial institutions

and other firms engaged in the extension of credit

make that credit equally available to all creditworthy

customers without regard to sex or marital status.’ ”

Consumer Fin. Prot. Bd. v. Townstone Fin., Inc., 107

F.4th 768, 773 (7th Cir. 2024) (quoting initial version

of the statute). Perhaps men on average swim faster

or spike a volleyball harder than women, and so sex

distinctions may be material to sports, but that has

no bearing on their likelihood of repaying a loan,

where sex distinctions—including distinctions based

on sexual orientation or gender identity—have no

place.

III.

Housing Discrimination Against LGBTQ

People is a Significant Problem.

The importance of Bostock’s application to the

FHA and ECOA is not an abstract matter. Housing

discrimination against LGBTQ people is a material

and pressing concern for millions of Americans.

Lower courts have correctly applied Bostock to claims

of LGBTQ discrimination under the Fair Housing

Act and they should be permitted to continue doing

so.

America has grown increasingly welcoming

towards its many LGBTQ people. This trend is not

universal,

however,

and

serious

housing

discrimination against the LGBTQ community

persists. In one recent survey, more than threequarters

LGBTQ

individuals

reported

experiencing housing discrimination based on their

identity. See Zillow Grp., Survey: Most LGBTQ+

Individuals Experience Discrimination in Housing

(June 11, 2024), https://www.zillowgroup.com/news/

most-lgbtq-experience-discrimination-in-housing/

[https://perma.cc/EJU3-CJJ5].

These

reports

discrimination

are

corroborated by robust empirical evidence. In a 2013

study, researchers sent thousands of emails to

landlords inquiring about units the landlords had

advertised online. Samantha Friedman et al., An

Estimate of Housing Discrimination Against SameSex Couples, Dep’t Hous. & Urb. Dev’t (2013),

[http://perma.cc/5KXM-T6YZ]. Approximately one of

every six landlords sent less favorable responses to

emails that purported to be from a same-sex couple

than to emails that purported to be from a

heterosexual couple. Id. at vi–vii. Another pairtesting study found that landlords told gay men and

transgender people about fewer available rental

units. See Diane K. Levy et al., A Paired-Testing

Pilot Study of Housing Discrimination Against

Same-Sex Couples and Transgender Individuals,

Urb. Inst. (2017), https://www.urban.org/sites/

default/files/publication/91486/2017.06.27_hds_lgt_fi

nal_report_report_finalized_0.pdf [https://perma.cc/Y

6B3-D8HF].

LGBTQ Americans also face prejudice when

they wish to buy a home. When same-sex couples

apply for a mortgage, their applications are less

likely than those of heterosexual couples to be

approved. See J. Shahar Dillbary & Griffin Edwards,

An Empirical Analysis of Sexual Orientation

Discrimination, 86 U. Chi. L. Rev. 1, 4–5 (2019),

https://lawreview.uchicago.edu/sites/default/files/01

Dillbary_ART_Post-SA

%28KT%29.pdf

[https://

perma.cc/9A86-2XN8]. And when their applications

are approved, same-sex couples pay higher financing

costs, resulting in millions in additional interest and

fees each year. See Lei Gao & Hua Sun, Lending

Practices to Same-Sex Borrowers, 116 Proceedings

Nat’l Acad. Scis. 9293, 9293 (2019), https://doi.org/

10.1073/pnas.1903592116. Both studies accounted

for financial risk factors and loan characteristics. See

Dillbary & Edwards, supra, at 35–39, 43–44, 47

n.200; Gao & Sun, supra, at 9294.

When landlords and lenders discriminate

against LGBTQ consumers, they target a community

already at high risk of housing instability. LGBTQ

Americans are more likely to live in poverty than

their heterosexual and cisgender peers. See M.V. Lee

Badgett et al., LGBT Poverty in the United States: A

Study of Differences Between Sexual Orientation and

Gender Identity Groups, U.C.L.A. L. Sch. Williams

Inst., at 24–26 (2019), https://williamsinstitute.law.

ucla.edu/wp-content/uploads/National-LGBT-Pover

ty-Oct-2019.pdf [https://perma.cc/3U65-2ZLB]. They

are, accordingly, less likely to own homes than others

in their age cohort, and more likely to experience

homelessness. See Visalli et al., Why Are There Gaps

in LGBTQ+ Homeownership, Urb. Inst. Rsch. Report,

at 7 (2023), https://www.urban.org/sites/default/files/

2024-02/Why_Are_There_Gaps_in_LGBTQ%2B_Hom

eownership.pdf [https://perma.cc/B73M-SRXU]; Alex

Montero et al., LGBT Adults’ Experiences with

Discrimination and Health Care Disparities:

Findings from the KFF Survey of Racism,

Discrimination, and Health, Kaiser Fam. Found.

(2024), https://www.kff.org/racial-equity-and-healthpolicy/lgbt-adults-experiences-with-discriminationand-health-care-disparities-findings-from-the-kff-

survey-of-racism-discrimination-and-health/ [https://

perma.cc/Y9RR-6KE4].

LGBTQ youth are particularly vulnerable

because they often face rejection from their families

after coming out: studies have shown that a large

share of homeless youth (ranging from 20% to 45%)

identify as LGBTQ. Adam P. Romero et al., LGBT

People and Housing Affordability, Discrimination,

and Homelessness, U.C.L.A. L. Sch. Williams Inst.,

at 14–17, (2020), https://williamsinstitute.law.ucla.

edu/wp-content/uploads/LGBT-Housing-Apr-2020.pdf

[https://perma.cc/K4QL-HY44]. When in shelters,

moreover, many LGBTQ youth report being harassed

because of their sexual orientation or gender

identity. Id. at 18–19.

The effects of housing discrimination are farreaching, because where we live shapes many facets

of our lives. Our homes affect our job opportunities,

our health and health care, the quality of schools our

children attend, and our risk of being victims of

violent crimes. Our homes are integrally connected

to our financial well-being, too. Home ownership is a

primary method by which Americans accumulate

wealth. Meanwhile, the median renter spends 31% of

their income on housing costs—an amount that has

increased over the past two decades. See Press

Release, U.S. Census Bureau, Nearly Half of Renter

Households Are Cost-Burdened, Proportions Differ

by Race (Sept. 12, 2024), https://www.census.gov

/newsroom/press-releases/2024/renter-householdscost-burdened-race.html [https://perma.cc/MA54RVYA].

Countering

housing

discrimination,

including discrimination against LGBTQ individuals,

is therefore an urgent priority.

Following

Bostock,

state

and

federal

regulators have made substantial strides towards

this goal. In 2021, HUD cited Bostock when

announcing its position that the Fair Housing Act

prohibits discrimination on the basis of gender

identity or sexual orientation.5 News Release, Dep’t

Hous. & Urb. Dev’t, No. 21-021, HUD to Enforce Fair

Housing Act to Prohibit Discrimination on the Basis

of Sexual Orientation and Gender Identity (Feb. 11,

2021), https://archives.hud.gov/news/2021/pr21-021.

cfm [https://perma.cc/Z5SX-BCWG]. A majority of

states have now either interpreted or amended their

fair housing statutes to protect LGBTQ homeseekers.6 Polls show overwhelming support for such

HUD has since announced that it will not enforce the Fair

Housing Act with respect to claims of gender-identity

discrimination, based on its purported authority to prioritize

some claims over others. See Memorandum from John Gibbs,

Principal Deputy Assistant Sec’y for Fair Hous. & Equal

Opportunity, Fair Housing Act Enforcement and Prioritization

of Resources at 3 (Sept. 16, 2025), https://www.consumerfina

ncialserviceslawmonitor.com/wp-content/uploads/sites/880/2025

/09/HUD-memo-Fair-Housing-Act-Enforcement-and-Prioritizati

on-of-Resources-9.16.2025.pdf [https://perma.cc/3FM7-HQNY].

It has not, however, officially stated that the FHA does not bar

such discrimination, let alone released legal analysis that

would justify such a position.

After Bostock, regulators in seven states (Arizona, Florida,

Kansas, Kentucky, Michigan, Nebraska, North Dakota, Ohio,

and Pennsylvania) interpreted state fair housing statutes to

prohibit discrimination based on sexual orientation or gender

identity in at least some circumstances. See Press Release, Ariz.

Att’y Gen., Attorney General Mayes Announces Fair Housing

Act Settlement between LGBTQ Customers and Mortgage

Company (Apr. 18, 2023), https://www.azag.gov/pressrelease/attorney-general-mayes-announces-fair-housing-act-set

tlement-between-lgbtq-customers [https://perma.cc/MH53-VHE

J]; Fla. Comm’n on Hum. Rels., Sexual Discrimination (Feb. 3,

2021), https://fchr.myflorida.com/sexual-discrimination [https://

perma.cc/6DZV-CSWH]; Kan. Hum. Rts. Comm’n, Guidance

from the Kansas Human Rights Commission on Sex

Discrimination in Employment, Public Accommodations, and

Housing (Sept. 18, 2020), http://www.khrc.net/pdf/KHRC%20

Guidance%20on%20Sex%20Discrimination%20in%20Employm

ent,%20Public%20Accommodations,%20and%20Housing%20on

%20letterhead%20rev%20dwh.pdf [https://perma.cc/AP9F-AB6

H]; Ky. Hum. Rts. Comm’n, Frequently Asked Questions: I

believe I have been discriminated against based on my sexual

orientation/gender identity. Can I file a claim with KCHR?

(accessed Nov. 5, 2025), https://kchr.ky.gov/About/Pages/FAQs.

aspx]; Neb. Equal Opportunity Comm’n, Outreach Initial

Inquiry Questionnaire (accessed Nov. 5, 2025), https://neoc.

nebraska.gov/sites/default/files/2024-08/NEOC_webinquiry2024

v1_fillable.pdf [https://perma.cc/ZBG4-VLH7]; Press Release,

N.D. Dep’t Lab. & Hum. Rts., NDDOLHR Now Accepting and

Investigating Charges of Discrimination Based on Sexual

Orientation and Gender Identity (June 18, 2020),

https://web.archive.org/web/20250331211354/https://www.nd.g

ov/labor/news/nddolhr-now-accepting-and-investigating-charges

-discrimination-based-sexual-orientation-and; Ohio Civil Rts.

Comm’n, Discrimination based on Sexual Orientation and

Gender

Identity

(archived

Dec.

17,

2021),

https://web.archive.org/web/20211217171914/https:/www.crc.ohi

o.gov/FilingaCharge/LGBTQ.aspx; 53 Pa. Bull. 3188 (June 17,

2023).

State fair housing statutes expressly cover either sexual

orientation or gender identity (or both) in 25 other states and

territories: California, Colorado, Connecticut, Delaware, the

District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland,

Massachusetts,

Michigan,

Minnesota,

Nevada,

New

Hampshire, New Jersey, New Mexico, New York, Oregon,

Rhode Island, Utah, Vermont, Virginia, Washington, and

Wisconsin. See Cal. Gov. Code § 12955 (2025); Colo. Rev. Stat.

§ 24-34-502 (2025); Conn. Gen. Stat. § 46a-64c; Del. Code Ann.

policies. See Pub. Religion Rsch. Inst., Views on

LGBTQ Rights in All 50 States: Findings from

PRRI’s 2023 American Values Atlas (Mar. 12, 2024),

https://prri.org/research/views-on-lgbtq-rights-in-all50-states/ [https://perma.cc/XMU5-MNNK].

Since Bostock issued, meanwhile, the federal

courts to consider whether the Fair Housing Act

prohibits discrimination against LGBTQ individuals

have universally concluded that it does. See Robert

G. Schwemm, Housing Discrimination Law &

Litigation § 11C:1 (2025) (collecting cases); Larocque

v. Spring Green Corp., No. 22-cv-00249, 2024 WL

4198607, at *4 (D.R.I. Sept. 16, 2024); Johnson v.

Conn. Coal. Against Domestic Violence, No. 3:23-cv1133, 2024 WL 1000730, at *6 (D. Conn. Mar. 8,

2024); United States v. SSM Props., LLC, 619 F.

Supp. 3d 602, 606 (S.D. Miss. 2022); Scutt v. Dorris,

No. 20-cv-00333, 2021 WL 206356, at *5 (D. Haw.

Jan. 20, 2021); see also Walsh v. Friendship Vill. of S.

Cnty., No. 19-1395, 2020 WL 5361010, at *1 (8th Cir.

July 2, 2020) (vacating district court’s dismissal of

tit. 6, § 4603 (2025); D.C. Code § 2-1402.21; Haw. Rev. Stat. §

515-3; 775 Ill. Comp. Stat. 5/1-103(O-1), (Q), 5/3-102 (2025);

Iowa Code § 216.8 (2025); Me. Stat. tit. 5, § 4581-A (2025); Md.

Code Ann., State Gov’t § 20–705 (West 2025); Mass. Gen. Laws

ch. 151B, 4-3A, 3B, 6, 7 (2025); Mich. Comp. Laws § 37.2102

(2025); Minn. Stat. § 363A.09 (2025); Nev. Rev. Stat. § 118.100

(2025); N.H. Rev. Stat. Ann. §§ 354-A:10, 354-A:12.VI; N.J.

Stat. Ann. § 10:5-4 (2025); N.M. Stat. Ann. § 28-1-7.G (West

2025); N.Y. Exec. Law § 296.2-a (McKinney 2025); Or. Rev.

Stat. § 839-005-0205 (2025); 34 R.I. Gen. Laws § 34-37-2 (2025);

Utah Code Ann. § 57-21-5 (2025); Vt. Stat. Ann. tit. 9, § 4503;

Va. Code Ann. § 36.96.3 (2025); Wash. Rev. Code Ann.

§ 49.60.222 (2025); Wis Stat. § 106.50 (2025).

FHA sexual-orientation-discrimination claim and

remanding for reconsideration in light of Bostock).

By focusing narrowly on the issue raised in

this case—the correct reading of Title IX—this Court

will allow lower courts to continue to consider and

elaborate on the meaning of the Fair Housing Act.

CONCLUSION

Petitioners postulate differences between Title

VII and Title IX that they contend preclude

application of Bostock, a Title VII case, to this Title

IX case. Amicus believes those arguments are

incorrect. Petitioners’ assertion that Title IX’s “on

the basis of” language requires a stricter causation

standard than Title VII’s “because of,” thus

preventing the application of Bostock, is contrary to

this Court’s precedent and would disrupt established

doctrine for many other antidiscrimination statutes.

But if the Court concludes that Petitioners are right,

then it must heed the fact that with respect to the

differences Petitioners rely on, the FHA and ECOA

are like Title VII, not Title IX. Discrimination based

on sex under the FHA and ECOA includes

discrimination based on gender identity and sexual

orientation, and this Court should not say anything

that calls that into question.

Respectfully submitted,

/s/Sasha Samberg-Champion

JANELL M. BYRD

SASHA SAMBERG-CHAMPION

Counsel of Record

NATIONAL FAIR

HOUSING ALLIANCE

1331 Pennsylvania Ave., NW,

#650

Washington, DC 20004

(202) 898-1661

ssamberg-champion@

nationalfairhousing.org

GLENN SCHLACTUS

ALEXA MILTON

MIRIAM PIERSON

RELMAN COLFAX PLLC

1225 19th St. NW, Ste. 600

Washington, DC 20036

Counsel for Amicus Curiae

November 17, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.