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September 22, 2016

CFPB builds case for ECOA protection for gender identity and sexual orientation

JDSupra Business Advisor
By John L. Culhane, Jr.

While CFPB officials have suggested in public remarks that the Equal Credit Opportunity Act’s prohibition against discrimination on the basis of “sex” includes discrimination based on gender identity and sexual orientation, a letter dated August 30, 2016 from Director Cordray goes further by describing how, in the CFPB’s view, current law provides strong support for that position.  To our surprise, Director Cordray’s letter does not appear to be available on the CFPB’s website and there has been little reporting about it.

Even prior to Director Cordray’s letter, it came to our attention that the CFPB had been asking entities it supervises about how they incorporate sexual orientation and gender identity into their policies, procedures, and fair lending analyses.  By signaling that discrimination on the basis of gender identity and sexual orientation will be a focus of CFPB fair lending supervision and enforcement going forward, Director Cordray’s letter raises the potential stakes for bank and non-bank creditors. 

Director Cordray’s letter was sent in response to a letter from Services and Advocacy for GLBT Elders (SAGE) in which SAGE posed the question “whether the [CFPB] views credit discrimination on the bases of gender identity and sexual orientation, including but not limited to discrimination based on actual or perceived nonconformity with sex-based or gender-based stereotypes, as forms of sex discrimination prohibited under the [ECOA].”

In describing the CFPB’s “current thinking about how the law is continuing to evolve in this area,” Director Cordray sets forth the CFPB’s understanding of the terms “gender identity” and “sexual orientation.”  He states that the CFPB understands (1) “gender identity” to refer to “one’s internal sense of one’s own gender, which may or may not correspond to the sex that is assigned to a person at birth, and which may or may not be made visible to others,” and (2) “sexual orientation” to refer to “an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender, such as straight (or heterosexual), lesbian, gay, or bisexual.”  (Director Corday notes that the CFPB’s understanding of these terms is consistent with Department of Labor guidance.)

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Christina DaCosta
Assistant Director of Communications
917-553-3328
cdacosta@sageusa.org

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