On January 1, 2015, United States District Judge Hinkle issued an Order ruling that all Florida counties are to start issuing marriage licenses to same-sex couples as of January 6, 2015. The implications of this ruling are significant for same-sex couples, and their creditors as well. There are various legal aspects to consider as Florida law adjusts to incorporate same-sex married couples into the fold, but one question is whether the protections of The Equal Credit Opportunity Act (the “ECOA”) will apply to individuals married under Florida law.
The ECOA is a federal law which prohibits creditors from discriminating on the basis of marital status, as well as on the basis of race, national origin, religion, sex, or age. The Consumer Financial Protection Bureau has the authority to enforce compliance with the ECOA and its implementing regulations. Even though this is an issue of federal law, we have seen the ECOA come up in Florida litigation where a defendant seeks to avoid liability on a guaranty, alleging a violation of the ECOA. As of the date of this post, Florida courts have not considered whether individuals in a same-sex marriage who raise an ECOA defense in state court litigation will be entitled to do so. However, there is no reason to believe that Florida courts would treat same-sex married couples differently from other married individuals in the context of the ECOA.
Given many of the gender-neutral provisions of the law and its regulations, there may be no statutory basis on which to differentiate same-sex married couples. For example, the language of ECOA’s Regulation B merely references the “applicant’s spouse” which would implicitly include same-sex spouses. However, even where the ECOA does use the phrase “husband and wife,” the Consumer Financial Protection Bureau has indicated that it would not treat any gender-specific language as limiting. Rather, it would treat any term related to family or marital status to include same-sex marriages and married same-sex spouses. This is consistent with statements issued by other federal agencies, such as the Office of the Attorney General and the Internal Revenue Service . These agencies are interpreting terms related to family or marital status to include married same-sex couples, if the individuals are lawfully married under state law.
It would be wise for creditors to be aware of this change in Florida law. Creditors should revise any internal ECOA policies and procedures in order to provide equal treatment to married individuals applying for credit, regardless of the gender of their spouse. Additionally, if any internal policies use gendered terms such as “wife” or “husband,” creditors should consider using gender neutral terms such as “spouse” or “marriage.”