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September 18, 1979;

RORY BRAUNSTEIN, et al., Plaintiffs,

The opinion of the court was delivered by: PIERCE


This is an action brought by four single parents and their respective four children *fn1" who claim that because of their sex they have been denied rental of two bedroom apartments in Manhattan Plaza, a federally-subsidized Mitchell-Lama housing complex. *fn2" Defendants are the owners and managers of Manhattan Plaza. Both parties move for summary judgment pursuant to Fed.R.Civ.P. 56.

 The facts are undisputed. Defendants acknowledge that a single parent with a child of the same sex is restricted to rental of a one bedroom apartment whereas a single parent with a child of the opposite sex is permitted to rent a two bedroom unit. Defendants claim that they are enforcing a policy instituted by the New York City Department of Housing Preservation and Development (HPD), the municipal agency which supervises Manhattan Plaza. An affidavit from Ruth Lerner, Assistant Commissioner of HPD, agrees that this is HPD's policy based on its interpretation of regulations promulgated by the agency. *fn3" Defendants further maintain that the policy comports with federal guidelines. *fn4" Plaintiffs, on the other hand, attack the policy as violating the Fair Housing Act (42 U.S.C. § 3604), *fn5" and the equal protection and due process clauses of the Constitution.

 Fair Housing Act

 Section 3604, enacted in 1968, was designed primarily to remedy racial discrimination in the rental or sale of housing. See Evans v. Lynn, 537 F.2d 571, 576-77 (2d Cir. 1975), Cert. denied, 429 U.S. 1066, 97 S. Ct. 797, 50 L. Ed. 2d 784 (1977); Otero v. New York City Housing Authority, 484 F.2d 1122, 1133 (2d Cir. 1973). In 1974, the section was amended to prohibit sex discrimination also. *fn6"

 There are few cases deciding charges of sex discrimination, and detailing the parameters of the statute. *fn7" The facts here present the Court with a case of first impression in defining the limits of sex discrimination under § 3604. While sex discrimination is not specifically defined in the statute, cases construing similar language in Title VII (42 U.S.C. § 2000e-2) *fn8" have held that discrimination must involve "disparate treatment." See, e.g., Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971). "Sex discrimination results when the opportunities or benefits offered . . . to one gender are less valuable or more restricted than those offered to the other." DeLaurier v. San Diego Unified School District, 588 F.2d 674, 677 (9th Cir. 1978).

 The Court does not find present in this case the requisite difference in treatment which would justify a finding of discrimination. A mother and daughter who reside together receive the same treatment as a father and son; neither family is eligible for rental of a two bedroom apartment. Since the essence of sex discrimination is the difference in treatment of the individual based on gender, and males and females receive similar treatment from the defendants, there is no sex discrimination.

 An analogous situation was reviewed by the Fourth Circuit in a case in which plaintiff charged sex discrimination when she lost her job because of a municipal ordinance which banned commercial massages by members of the opposite sex. The court concluded that the statute was not discriminatory since "the restrictions imposed . . . apply equally to males and females; neither can perform massages on customers who are members of the opposite sex." Aldred v. Duling, 538 F.2d 637, 638 (4th Cir. 1976). *fn9"

 Plaintiffs urge the Court to rely on the Title VII discrimination test recently set forth in City of Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 711, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978), to wit: "whether the evidence shows "treatment of a person in a manner which but for that person's sex would be different.' " Plaintiffs contend that "but for" their sex they would be housed in larger apartments. They argue that if all other circumstances remained constant and one of the plaintiffs were of the opposite sex, E. g., if a male parent with a male child were a female parent with a male child, that family would receive a larger apartment.

 However, the Court finds that the variable which determines allocation of two bedroom apartments is not the sex of the individual plaintiffs, but the composition of the family unit. A female parent with a female child and a male parent with a male child receive one bedroom apartments; a female parent with a male child and a male parent with a female child receive two bedroom apartments. Distinctions based upon factors other than the individual's sex do not constitute sex-based discrimination. See General Electric Co. v. Gilbert, 429 U.S. 125, 134-35, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976). *fn10"

 The Court concludes that defendants' housing allocation procedure is gender-neutral, equally affecting both men and women. Accordingly, it does not constitute sex discrimination in violation of the Fair Housing Act.

 Equal Protection

 Plaintiffs also charge that defendants' housing policy classifies potential tenants and distributes apartments on the basis of gender in violation of the equal protection clause of the Constitution. *fn11"

 At the outset, it should be noted that the policy by which defendants distribute apartments does not appear to be a gender-based classification of a type outlawed by the equal protection clause. The traditional equal protection case involves a classification that distinguishes broadly between males and females. See, e.g., Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (prohibition against sale of 3.2% Beer to males 18-20 years of age but not to females of that age); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) (mandatory preference of men over women as administrators of decedent's estate). In such cases, gender is often used "as an inaccurate proxy for other, more germane bases of classification." Craig v. Boren, 429 U.S. 190, 198, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397 (1976). *fn12" Yet, as has been stated previously, the underlying classification and determination of eligibility in the instant case rests on the composition of the family unit rather than the gender of the applicant. This is not a case where sex stereotyping is used as a convenient substitute for more accurate classifying criteria. See, e.g., Orr v. Orr, 440 U.S. 268, 278-283, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979) (With regard to alimony differentiation between males and females, sex was not a reliable proxy for financial need); Craig v. Boren, 429 U.S. 190, 204, 97 S. Ct. 451, 460, 50 L. Ed. 2d 397 (1976) (Gender does not represent "a legitimate, accurate proxy for the regulation of drinking and driving.").

 However, even if the Court were to agree that classification of the family unit and the allocation of living space were based upon gender, defendants' housing policy would withstand equal protection scrutiny nevertheless.

 The view that gender is a suspect classification mandating a strict scrutiny review of equal protection charges has not to date commanded the approval of a majority of the Supreme Court. *fn13" See Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality). Instead, the Supreme Court has held that to withstand equal protection scrutiny "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Orr v. Orr, 440 U.S. 268, 279, 99 S. Ct. 1102, 1111, 59 L. Ed. 2d 306 (1979), quoting Califano v. Webster, 430 U.S. 313, 316-17, 97 S. Ct. 1192, 51 L. Ed. 2d 360 (1977).

 Defendants contend that the objectives of their policy are twofold: to maximize the number of persons who may occupy subsidized housing and to reduce the per capita cost of such subsidy. Rent in Mitchell-Lama housing is determined as a percentage of total family income; the federal subsidy provides the difference between the rent an eligible tenant pays and the actual cost of the apartment. *fn14"

 It is acknowledged that there is no Constitutional right to housing of a particular size or quality. See Lindsey v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972). In this context and given the need to maximize use of available apartment space, the government's interest would best be served by allocating one bedroom apartments to all single parent families.

 Plaintiffs recognize that "(i)n every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties." Orr v. Orr, 440 U.S. 268, 272, 99 S. Ct. 1102, 1108, 59 L. Ed. 2d 306 (1979). While a Court mandate that All single parent families be limited to rental of one bedroom units is not the relief these plaintiffs seek, they acknowledge the possibility of such a result and agree that such a holding would satisfy Constitutional requirements.

 However, in allocating space in Manhattan Plaza, an exception has been carved out where the best interest of parent and child may require separate sleeping accommodations. Reasonable land use regulations are permissible if they protect the public health, safety, morals or general welfare. Euclid v. Ambler, 272 U.S. 365, 395, 47 S. Ct. 114, 71 L. Ed. 303 (1926). The general welfare is not to be narrowly construed; it embraces a broad range of governmental purposes. Moore v. City of East Cleveland, 431 U.S. 494, 498 n. 6, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977).

 In specifying the public interest and general welfare they wish to protect, defendants have argued persuasively that the healthy psycho-social and sexual development of single parents and their children of the opposite sex are best served when each family member has his or her own bedroom. *fn15" Moreover, they claim that individual sleeping arrangements reduce the likelihood of incest and problems relating to gender misidentification. Common societal experience and conventional wisdom confirm that beyond a certain age children ought not to share the same bedroom with a person of the opposite sex.

 Plaintiffs respond that empirical research on the potential psychological harm of having a single parent and child of the opposite sex share the same bedroom is limited. However, they do not refute the contention that a significant amount of social and emotional maldevelopment may be avoided where single parents and children of the opposite sex are given two bedroom apartments.

 The Court recognizes plaintiffs' contention that the privacy need of each family member would best be served if all single parent families with one child were given two bedroom apartments. However, limited federal and municipal resources preclude this alternative. Yet, maximizing use of federal housing subsidies and protecting the physical and mental welfare of the citizenry are certainly legitimate and substantial state interests. This Court should not "second guess" the government agency which recognized these traditional societal values and economic realities and sought to protect them. Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974).

 Classifications do not violate equal protection merely because they may be imperfect, imprecise or underinclusive. New York City Transit Authority v. Beazer, 440 U.S. 568, 592 n. 39, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979); Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S. Ct. 423, 72 L. Ed. 770 (1928) (Holmes, J., dissenting). Where, as here, a standard has evolved which bears a substantial relationship to an important state interest, Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979), and which does not use sex as a convenient administrative substitute for a more accurate classifying characteristic, Orr v. Orr, 440 U.S. 268, 278-283, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), there is no equal protection violation.

 Due Process

 Relying on Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977), plaintiffs further assert that defendants' housing policy has infringed on their right of privacy and has impermissibly regulated their family living arrangements without due process.

 Housing of a particular size or quality is not a Constitutionally guaranteed right. Lindsey v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972). Similarly, there is no discernable Constitutional assurance that parents and children are entitled to separate bedrooms.

 There is no doubt that freedom of personal choice in matters of family life is one of the liberties protected by due process. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). This Court must determine whether defendants' housing policy has trespassed into the "private realm of family life which the state cannot enter." Moore v. City of East Cleveland, 431 U.S. at 499, 97 S. Ct. at 1936, quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944).

 Unlike the zoning ordinance nullified in Moore, the housing policy here does not preclude certain family units from living together or make certain living arrangements a crime. *fn16" Defendants merely afford greater living space to some families than to others.

 Government regulation of municipally subsidized housing is permitted. See Male v. Crossroads Associates, 469 F.2d 616, 622 (2d Cir. 1972). The right to reside in government financed housing is not absolute; due process requires that selection of applicants be conducted according to ascertainable standards and in a reasonable manner. Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968).

 Federal funds for housing subsidies are not unlimited. The plaintiffs have taken advantage of government subsidies to assist them in meeting their housing expenses. Having availed themselves of these government benefits, they must accept government regulations which are not discriminatory and which are rationally related to legitimate government objectives. See Bynes v. Toll, 512 F.2d 252, 255 (2d Cir. 1975).

 Thus, defendants' policy which neither forbids a family from living together nor unduly interferes with their choice of living arrangements and which comports with all other due process requirements is not violative of plaintiffs' fourteenth amendment rights.


 For the reasons stated above, the Court finds that defendants' policy of assigning two bedroom apartments to single parent families only when parent and child are of opposite sexes does not violate the Fair Housing Act or the Constitutional parameters of equal protection and due process.

 Accordingly, plaintiffs' motion for summary judgment is hereby denied and defendants' motion for summary judgment is hereby granted.


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