The Fair Housing Act was enacted in order to protect certain groups against discrimination in housing. The Act extends this protection to any “dwelling,” but its coverage is not well defined for nontraditional sleeping facilities such as homeless shelters, substance abuse treatment facilities, or tent cities. Courts have applied the Fair Housing Act to any residence—defined by one court as “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.” Courts have generally focused on occupants’ length of stay as the determinative factor in examining the scope of the dwelling requirement in the Act.
Homeless shelters and battered women’s shelters have long been operated on a single-sex basis, and some shelters place restrictions on familial status. However, current law is still unclear on whether such facilities are subject to the prohibition on familial status and sex discrimination under the Fair Housing Act. The Ninth Circuit recently declared a single-sex men’s homeless shelter to be in violation of the Fair Housing Act. If adopted by other circuits, this holding would require the restructuring of many shelters to accommodate both sexes, expose shelters to costly litigation likely resulting in closures and reduced services to the homeless, and reduce further the privacy and security of shelter guests. In this Comment, I argue that courts’ focus on length of stay is too narrow and present an alternative test for dwellings under the Fair Housing Act.