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Rules and Regulations
Federal Register Vol. 86, No. 49
Tuesday, March 16, 2021

This section of the FEDERAL REGISTER
contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.

BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Part 1002
Equal Credit Opportunity Regulation B; Discrimination on the Bases of Sexual Orientation and Gender Identity Bureau of Consumer Financial Protection.
ACTION: Interpretive rule.
AGENCY:

The Bureau of Consumer Financial Protection Bureau is issuing this interpretive rule to clarify that, with respect to any aspect of a credit transaction, the prohibition against sex discrimination in the Equal Credit Opportunity Act ECOA and Regulation B, which implements ECOA, encompasses sexual orientation discrimination and gender identity discrimination, including discrimination based on actual or perceived nonconformity with sexbased or gender-based stereotypes and discrimination based on an applicants associations.
DATES: This interpretive rule is effective on March 16, 2021.
FOR FURTHER INFORMATION CONTACT:
Pavy Bacon, Senior Counsel, Office of Regulations at 2024357700. If you require this document in an alternative electronic format, please contact CFPB_
Accessibility@cfpb.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:

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I. Background The Bureau is responsible for administering and enforcing ECOA 1
and its implementing Regulation B.2
ECOA makes it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction, on several enumerated bases, including on the basis of . . . sex . . . 3 Likewise, 1 15

U.S.C. 16911691f.
CFR part 1002.
3 15 U.S.C. 1691a1.
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Regulation B prohibits a creditor from discriminating against an applicant on a prohibited basis including sex 4
regarding any aspect of a credit transaction, and from making any oral or written statement to applicants or prospective applicants that would discourage on a prohibited basis a reasonable person from making or pursuing an application. 5
On June 15, 2020, in Bostock v.
Clayton County, Georgia, the Supreme Court ruled that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 Title VII
encompasses sexual orientation discrimination and gender identity discrimination.6 The Court relied on three key findings to reach its decision:
1 Sexual orientation discrimination and gender identity discrimination necessarily involve consideration of sex;
2 Title VIIs language requires sex to be a but for cause of the injury, but need not be the only cause; and 3 Title VIIs language covers discrimination against individuals, and not merely against groups.7
In response to Executive Order 13988, Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation,8 which addresses Bostock, Jeanine M. Worden, Acting Assistant Secretary for Fair Housing & Equal Opportunity, released a memorandum directing the Office of Fair Housing and Equal Opportunity of the U.S. Department of Housing and Urban Development to take the actions to administer and fully enforce the Fair Housing Act to prohibit discrimination because of sexual orientation and gender identity.9
Before the issuance of the Bostock opinion, at least twenty states and the District of Columbia prohibited discrimination on the bases of sexual orientation and/or gender identity either in all credit transactions or in certain e.g., housing-related credit 4 12

CFR 1002.2z.
CFR 1002.4ab.
6 Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218 2020.
7 Id.
8 86 FR 7023 Jan. 25, 2021.
9 U.S. Dept. of Hous. and Urban Dev., Memorandum, Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act Feb. 11, 2021, https www.hud.gov/sites/dfiles/
PA/documents/HUD_Memo_EO13988.pdf.
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transactions.10 As such, financial institutions subject to such laws were required to comply with those requirements prior to the issuance of the Bostock opinion. Many financial institutions recognize sexual orientation and/or gender identity to be protected classes under State laws 11 and may have determined to incorporate practices that prohibit discrimination on these bases.12
10 While not intended to be an all-inclusive list, the State statutes include Cal. Civ. Code secs. 51, 51.5; Cal. Govt Code sec. 12955; Colo. Rev. Stat.
sec. 24345013; Colo. Rev. Stat. sec. 53210;
Conn. Gen. Stat. secs. 46a81e, 46a81f, 46a98;
Del. Code Ann. tit. 6, sec. 4604; D.C. Code sec. 2
1402.21; Haw. Rev. Stat secs. 5153, 5155; 775 Ill.
Comp. Stat. sec. 5/1102A, 5/1103O, O1, and Q, 5/4102, 5/3102, 5/4103; Iowa Code secs.
216.8A, 216.10; Me. Rev. Stat. tit. 5, sec. 45535
C and 9C, 4595 to 4598, 4581 to 4583; Md. Code Ann, State Govt secs. 20705, 20707, 201103;
Mass. Gen. Laws ch. 151B, sec. 43B, 14; Minn.
Stat. secs. 363A.03 Subd. 44, 363A.093, 363A.16
Subds.1 and 3, 363A.17; N.H. Rev. Stat. Ann. sec.
354A:10; N.J. Stat. Ann. sec. 10:512i; N.M. Stat.
Ann. sec. 2817; N.Y. Civ. Rights Law sec. 40c2;
N.Y. Exec. Law sec. 296A; Or. Rev. Stat. secs.
174.1007, 659A.421; R.I. Gen. Laws secs. 3437
4a through c, 34374.3, 34375.4; Va. Code Ann. sec. 6.2501B1; 15.2853; 15.2965; Vt.
Stat. Ann. tit. 8, sec. 10403; Vt. Stat. Ann. tit. 9, sec.
2362, 2410, 4503a6; Wash. Rev. Code sec.
49.60.030, 49.60.040 14, 26, and 27, 49.60.175, 49.60.222; Wis. Stat. secs. 106.50, 224.771o.
Also, since Bostock, the North Dakota Department of Labor and Human Rights has interpreted the North Dakota statutes against sex discrimination to include sexual orientation and gender identity discrimination. N.D. Dept of Lab. and Hum. Rts.
NDDOLHR, NDDOLHR Now Accepting and Investigating Charges of Discrimination Based on Sexual Orientation and Gender Identity June 18, 2020, https www.nd.gov/labor/news/nddolhrnow-accepting-and-investigating-chargesdiscrimination-based-sexual-orientation-and. There are also a number of municipalities that include sexual orientation and/or gender identity in their credit discrimination ordinances. See, e.g., Austin City Code sec. 511 et seq.; N.Y.C. Admin. Code secs. 8101, 8107 et seq.; S.F. Police Code, sec.
3304a et seq.
11 See Consumer Bankers Assn CBA, Comment Letter on Request for Information on the Equal Credit Opportunity Act and Regulation B RFI, Document No. CFPB202000260147 Dec. 1, 2020 Many CBA members currently consider sexual orientation and gender identity to be protected classes under State laws, therefore, potential post Bostock changes to how the Bureau interprets ECOAs prohibition on discrimination on the basis of sex would likely align with, and would not significantly alter, practices that comply with state laws..
12 See, e.g., Off. of the Comptroller of the Currency, Interpretive Letter 998 Mar. 9, 2004, https www.occ.gov/topics/charters-and-licensing/
interpretations-and-actions/2004/int998.pdf What would generally be understood to be an anti-discrimination law . . . e.g., laws that prohibit lenders from discriminating on the basis of race, religion, ethnicity, gender, sexual orientation,
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