Does ECOA bar discrimination because of sexual orientation and gender identity?

The Equal Credit Opportunity Act bars discrimination in consumer lending on the basis of sex but does not explicitly apply to sexual orientation or gender identity, as some state laws do. Back in 2021, after the Supreme Court’s decision in Bostock v. Clayton County interpreting Title VII, the employment discrimination statute, to forbid such discrimination, the CFPB issued an interpretive rule similarly interpreting ECOA as prohibiting discrimination on the basis of sexual orientation or gender identity. But last spring, the CFPB withdrew that interpretive rule, as well as many others, in another interpretive rule. So can lenders discriminate against trans and gay people? I think not. Bostock relied heavily on Title VII’s text. Title VII outlaws discrimination “because of such individual’s . . . sex . . . ” while ECOA and the FHA prohibit discrimination “on the basis of . . . sex . . . .” The language is different, but I don’t see that the difference makes a difference. And at a time when the Supreme Court has a strong preference for using the statutory text in interpreting statutes, that should be enough. As for the rescission of the interpretive rule, such “rules” are not considered binding. Thus, courts are free to ignore the rescission of the original interpretive rule and adopt its reasoning–just as they were free to ignore that interpretation before it was rescinded.