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Federal Register / Vol. 86, No. 49 / Tuesday, March 16, 2021 / Rules and Regulations
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The Bureau has previously indicated that legal developments would lead to prohibitions against sex discrimination being interpreted to afford broad protection against discrimination on the bases of sexual orientation and gender identity. In 2016, in response to an inquiry from Services & Advocacy for GLBT Elders SAGE, the Bureau sent a letter addressing coverage of sex discrimination involving sexual orientation and gender identity under ECOA.13 The letter to SAGE concluded that the current state of the law supports arguments that the prohibition of sex discrimination in ECOA and Regulation B affords broad protection against credit discrimination on the bases of gender identity and sexual orientation, including but not limited to discrimination based on actual or perceived nonconformity with sexbased or gender-based stereotypes as well as discrimination based on ones associations. 14 Further, the letter to SAGE stated that the Bureau will continue to monitor these legal developments closely as we strive to ensure that our interpretation and application of laws and rules under our jurisdiction, including ECOA and Regulation B, appropriately reflect the evolving precedents interpreting sexual discrimination law. 15 The Bureau also incorporated its views regarding sex discrimination under ECOA and Regulation B into its ECOA brochure and AskCFPB materials.16
After the Supreme Court issued the Bostock opinion, diverse stakeholders asked the Bureau to clarify that ECOAs and Regulation Bs prohibition of sex discrimination includes discrimination on the bases of sexual orientation and/
disability, or the like . . . would not be preempted. emphasis in original; Natl Cmty.
Reinvestment Coal., Comment Letter on RFI, Document No. CFPB202000260123 Dec. 1, 2020 noting that defense attorneys have already informed the mortgage industry that as more State laws incorporate this robust definition of sex, they should incorporate it into their policies and procedures citation omitted.
13 See Letter from Bureau of Consumer Fin. Prot., to Serv. & Advocacy for GLBT Elders SAGE, Aug.
30, 2016, https files.consumerfinance.gov/f/
documents/cfpb_sage-response-letter_2021-02.pdf.
14 Id. at 7.
15 Id.
16 See Bureau of Consumer Fin. Prot., Helping consumers understand credit discrimination Mar.
2017, https files.consumerfinance.gov/f/
documents/201703_cfpb_handout_ECOA_helping_
consumers.pdf; Bureau of Consumer Fin. Prot., What protections do I have against credit discrimination?, https www.consumerfinance.gov/
fair-lending/. Both state: Currently, the law supports arguments that the prohibition against sex discrimination also affords broad protection from discrimination based on a consumers gender identity and sexual orientation.. The Bureau will update these and other materials to reflect this interpretive rule.

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or gender identity. Many comments to the Bureaus recent Request for Information on the Equal Credit Opportunity Act and Regulation B
RFI 17 from a variety of stakeholders, including consumer and civil rights advocates, a local government official, an academic institution, and industry representatives, reiterated this request for regulatory clarification.18 The Bureau is issuing this interpretive rule to address any regulatory uncertainty that may still exist under ECOA and Regulation B as to the term sex so as to ensure the fair, equitable, and nondiscriminatory access to credit for both individuals and communities and to ensure that consumers are protected from discrimination.19 This interpretive rule serves a stated purpose of Regulation B, which is to promote the availability of credit to all creditworthy applicants without regard to . . . sex . . . 20
II. Discussion The Bureau interprets the ECOA and Regulation B prohibitions against discrimination on the basis of sex to include discrimination based on sexual orientation and/or gender identity. The Bureaus interpretation is consistent with the Courts conclusion in Bostock regarding sex discrimination under Title VII.21
17 85

FR 46600 Aug. 3, 2020.
e.g., Natl Fair Hous. All., Comment Letter on RFI, Document No. CFPB202000260137 Dec.
1, 2020; City of Houston, City Controller, Comment Letter on RFI, Document No. CFPB20200026
0120 Dec. 1, 2020; Steven Trovarelli, Comment Letter on RFI, CFPB202000260051 Oct. 1, 2020; Anonymous, Comment Letter on RFI, Document No. CFPB202000260064 Nov. 3, 2020; Consortium for Citizens with Disabilities Fin.
Sec. & Poverty Task Force, Comment Letter on RFI, Document No. CFPB202000260104 Dec. 1, 2020; Natl Womens Law Ctr., Comment Letter on RFI, Document No. CFPB202000260112A1
Dec. 1, 2020; Cmty. Dev. Bankers Assn CDBA, Comment Letter on RFI, Document No. CFPB
202000260113 Dec. 1, 2020; Mortg. Bankers Assn, Comment Letter on RFI, Document No.
CFPB202000260115 Dec. 1, 2020; Natl Cmty.
Reinvestment Coal., Comment Letter on RFI, Document No. CFPB202000260123 Dec. 1, 2020; LendingClub, Comment Letter on RFI, Document No. CFPB202000260126 Dec. 2, 2020; Natl Consumer Law Ctr., Comment Letter on RFI, Document No. CFPB202000260129A1
Dec. 2, 2020; The Williams Institute, Comment Letter on RFI, Document No. CFPB20200026
0132 Dec. 2, 2020; Natl Disability Rts. Network, Comment Letter on RFI, Document No. CFPB
202000260139 Dec. 2, 2020; Serv. & Advocacy for GLBT Elders SAGE, Comment Letter on RFI, Document No. CFPB202000260141 Dec. 2, 2020; Ctr. for Am. Progress, Comment Letter on RFI, Document No. CFPB202000260144 Dec. 2, 2020; Consumer Bankers Assn, Comment Letter on RFI, Document No. CFPB202000260147 Dec. 2, 2020.
19 12 U.S.C. 5493c2A, 5511b2.
20 12 CFR 1002.1b.
21 See Bostock, 140 S. Ct. 1731.
18 See,
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It is well established that ECOA and Title VII are generally interpreted consistently.22 Like Title VII,23 ECOA
prohibits sex discrimination among other bases and does not require that sex or other protected characteristics be the sole or primary reason for an action to be discriminatory.24 Like Title VII,25 ECOA applies to sex discrimination against individuals, not just to situations where all men or all women or any other group of people with a common protected characteristic are discriminated against 22 See, e.g., Equal Credit Opportunity Act Amendments of 1976, Public Law 94239, 114 Stat.
246 1976; S. Rep. 94589, at 45 1976, reprinted in 1976 U.S.C.C.A.N. 403. judicial constructions of anti-discrimination legislation in the employment field . . . are intended to serve as guides in the application of this Equal Credit Opportunity Act; Mercado-Garcia v. Ponce Fed.
Bank, 979 F.2d 890, 893 1st Cir. 1992 applying Title VII standards in interpreting ECOA; Bhandari v. First Natl Bank of Commerce, 808 F.2d 1082, 1100 5th Cir. 1987 same; Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213, 215 1st Cir. 2000
looking to Title VII case law and reversing the dismissal of a sex discrimination claim filed by a transgender person who alleged being denied a loan application for failing to appear in clothing consistent with the sex reflected on their identification cards. See also Bostock, 140 S. Ct. at 1778 Alito, S., dissenting expressing the view that the decision is virtually certain to have farreaching consequences including, specifically, with regard to ECOA.
23 Bostock, 140 S. Ct. at 1734 holding that under Title VII, the plaintiffs sex need not be the sole or primary cause of the employers adverse action.
24 See Official Staff Commentary, 12 CFR part 1002, supp. I, 4a1 Disparate treatment on a prohibited basis is illegal whether or not it results from a conscious intent to discriminate.; Saldana v. Citibank, Fed. Sav. Bank, No. 93 C 4164, 1996
WL 332451, at 2 N.D. Ill. June 13, 1996 To establish a case of lending discrimination under the Fair Housing Act or the ECOA, plaintiff does not need to prove an actual intent to discriminate on the part of defendant, but she must show that race played some role in defendants decision..
Moreover, the 1994 Interagency Policy Statement on Discrimination in Lending Policy Statement provides an illustration of disparate treatment where the applicants minority status was not the sole or primary reason for the loan denial since adverse credit information was also a factor in the decision. The illustration states that a nonminority couple applied for an automobile loan. The lender found adverse information in the couples credit report. The lender discussed the credit report with them and determined that the adverse information a judgment against the couple was incorrect since the judgment had been vacated. The nonminority couple was granted their loan. A minority couple applied for a similar loan with the same lender.
Upon discovering adverse information in the minority couples credit report, the lender denied the loan application on the basis of the adverse information without giving the couple an opportunity to discuss the report. 59 FR 18266, 18268 Apr. 15, 1994; Bureau of Consumer Fin.
Prot., Bulletin 201204 Fair Lending Apr. 18, 2012, https files.consumerfinance.gov/f/201404_
cfpb_bulletin_lending_discrimination.pdf the Bureau expressed its concurrence with the Policy Statement.
25 Bostock, 140 S. Ct. at 1734 finding that an employer cannot escape liability under Title VII
by demonstrating that it treats males and females comparably as groups.

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