Cohabitation, GW and D.C. law

Should residents of GW residence halls be allowed to choose the person they wish to room with, regardless of gender? The answer may depend less on the views of the University or its students than on the law.

Contrary to the impression that may have been created, freshmen Kathy Rooney (a heterosexual female) and Clark Harding (allegedly a homosexual male) have a solid case of illegal sex discrimination under D.C. law if they are denied the right to room together solely because of gender.

The D.C. Human Rights Act makes it illegal for any educational institution “to deny or restrict . or condition the use of . any of its facilities and services to any person otherwise qualified . for a discriminatory reason, based upon the race, color, religion, national orientation, sex . of any individual.”

The only exception is if the institution can prove that “without such exception, such business cannot be conducted.” That may prove impossible to establish in this case because at least two other highly respected universities permit male-female roommate combinations, apparently without any serious problems. The policy applies even if both students are heterosexual and “intimate behavior” is a real possibility – the official reason GW prohibits cohabitation.

The law expressly provides that gender and other forms of discrimination cannot be justified by “the stereotyped characterization of one group as opposed to another.” Clearly the assumption that male-female roommate pairs will engage in “intimate behavior,” whereas male-male and female-female pairs will not, is based upon “stereotyped characterizations.” Obviously some male-female pairs will not engage in “intimate behavior” and some female-female and male-male pairs will.

The law also provides that sexual and other forms of discrimination cannot be justified by “the preferences of co-workers, employers, customers or any other person.” The only possible exception is if they are so overwhelmingly strong that the business otherwise could not function.

Thus, GW can provide separate locker room facilities in the Smith Center for males and females because, otherwise, the gross invasion of privacy probably would prevent most students from using it. But here, where Rooney and Harding have willingly accepted whatever limitations on their privacy are involved in rooming together, this objection just isn’t valid – and the preferences of other people are made irrelevant by law.

The 9th U.S. Court of Appeals recently confronted a similar case when landlords refused to rent an apartment to an unmarried male-female couple. The court held that the discrimination was not illegal in that specific case, but only on the narrow ground that the landlords were “professed Christians who believe that cohabitation between unmarried individuals constitutes the sin of fornication and that facilitating cohabitation in any way is tantamount to facilitating sin.”

Clearly that limited defense would not apply here because GW is a secular university, which has never taken a stand – religious or otherwise – against fornication. Even Georgetown University’s religious beliefs did not shield it from being found guilty of unlawful discrimination for refusing to provide certain privileges to a student organization simply because it supported homosexuality.

Rooney and Harding are apparently seeking a lawyer from the American Civil Liberties Union or elsewhere to bring a lawsuit in the D.C. Superior Court. Since the law permits them to include as defendants any person who aided any act of discrimination, GW officials who participated in or helped enforce the decision could be named.

Alternatively, if the students cannot find a lawyer, either could fill out a complaint with the D.C. Office of Human Rights. In either forum, they will be entitled not only to recover damages but also attorney fees.

Interestingly, if neither Rooney or Harding initiates a legal action, a complaint against this apparently illegal discriminatory policy can still be filed by any person – a student, staff or faculty member or even someone outside the University – and they too can recover attorney fees. Thus, the risk that GW will face legal action over this policy is not insignificant.

If, as The Hatchet indicates, few students would be interested in rooming in a residence hall with a person of the opposite gender, the University might be well advised to avoid potential legal problems and permit that small number to do so, at least on a trial basis.

-John F. Banzhaf III is a GW Law School professor.

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