In its new annual report covering its fair lending activities during 2016, the CFPB identifies the following three areas on which it “will increase our focus” in 2017:

  • Redlining.  The CFPB “will continue to evaluate whether lenders have intentionally discouraged prospective applicants in minority neighborhoods.”
  • Mortgage and Student Loan Servicing.  The CFPB “will evaluate whether some borrowers who are behind on their mortgage or student loan payments may have more difficulty working out a new solution with the servicer because of their race, ethnicity, sex, or age.”
  • Small Business Lending.  “Congress expressed concern that women-owned and minority-owned businesses may experience discrimination when they apply for credit, and has required the CFPB to take steps to ensure their fair access to credit.  Small business lending supervisory activity will also help expand and enhance the Bureau’s knowledge in this area, including the credit process; existing data collection process; and the nature, extent, and management of fair lending risk.”

The three 2017 priority areas are the same as those identified by Patrice Ficklin, Associate Director of the CFPB’s Office of Fair Lending, in her December 2016 blog post that outlined the CFPB ‘s fair lending priorities for 2017.  However, unlike Ms. Ficklin’s blog post, the fair lending report includes the CFPB’s plans to ramp up its small business lending supervisory activity. 

The report states that in 2016, CFPB fair lending supervisory and public enforcement actions resulted in approximately $46 million in remediation.  In the report’s section on supervisory activities, the CFPB reviews information previously provided in its June 2016 Mortgage Servicing Special Edition of Supervisory Highlights and its Summer 2016 and Fall 2016 editions of Supervisory Highlights.  In the section on enforcement, the CFPB reviews several fair lending public enforcement actions and its implementation of several consent orders.  The report also discusses HMDA warning letters sent by the CFPB in October 2016 and notes that in 2016, the CFPB referred 8 matters to the Department of Justice.  The CFPB states that at the end of 2016, it had a number of pending redlining investigations as well as a number of pending investigations in other areas.  It is unclear how much collaboration between the CFPB and DOJ will occur in the Trump Administration. 

In the section on rulemaking, the CFPB discusses its final rule amending Regulation C (which implements HMDA) and related HMDA/Regulation C developments.  The CFPB also discusses the status of the new uniform residential loan application, the collection of race and ethnicity information under Regulation B, and its March 2017 proposal regarding amendments to Regulation B to facilitate Regulation C compliance and address other issues.  

In discussing its progress in developing rules on the collection of small business lending data to implement Section 1071 of Dodd-Frank, the CFPB tracks verbatim much of what was stated in last year’s fair lending report.  (Section 1071 amended the ECOA to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses.)  As it did last year, the CFPB states that the first stage of its Section 1071 work will be focused on outreach and research, after which it “will begin developing proposed rules concerning the data to be collected and determining the appropriate procedures and privacy protections needed for  information-gathering and public disclosure.”  The report again states that the CFPB “has begun to explore some of the issues involved in the rulemaking, including engaging numerous stakeholders about the statutory reporting requirements.”  This year’s report adds the statement above that the CFPB intends to use its future small lending supervisory activity to “help expand and enhance the Bureau’s knowledge in this area, including the credit process; existing data collection processes; and the nature, extent, and management of fair lending risk.” 

Two other sections of the report discuss the CFPB’s coordination with other federal agencies on fair lending issues and outreach to industry and consumers (such as through speaking engagements and roundtables, blog posts, and supervisory highlights).  The last section of the report is intended to satisfy certain ECOA and HMDA reporting requirements, including providing a summary of other agencies’ ECOA enforcement efforts and reporting on the utility of certain HMDA reporting requirements.    

The CFPB may seek to rely on a recent Seventh Circuit employment discrimination case to support its view that the Equal Credit Opportunity Act’s (ECOA’s) prohibition against discrimination on the basis of “sex” includes discrimination based on sexual orientation.

In Hively v. Ivy Tech Community College of Indiana, the court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against individuals because of their sexual orientation. The court also concluded there was no difference between discrimination based on gender nonconformity—which the U.S. Supreme Court held in Price Waterhouse v. Hopkins nearly thirty years ago was actionable under Title VII—and sexual orientation. In addition, the court drew parallels to associational discrimination, which was held to be unlawful in Loving v. Virginia, and which is likewise considered to violate the ECOA and Regulation B.

Since at least last year, the CFPB has signaled that discrimination on the basis of gender identity and sexual orientation might be a focus of fair lending supervision and enforcement. Director Cordray indicated as much in a 2016 letter to the organization SAGE (Services & Advocacy for GLBT Elders). The letter, which we wrote about here, discussed Price Waterhouse and other Title VII cases and noted that Title VII precedents traditionally guide judicial interpretation of ECOA and Regulation B.

With Hively, the Seventh Circuit becomes the first circuit court of appeals to conclude that an employment discrimination claim may be brought on the basis of sexual orientation, although that position has not been endorsed in other circuits. In March, the Eleventh Circuit held in Evans v. Georgia Regional Hospital that gender non-conformity claims are distinct from claims based on sexual orientation and that sexual orientation claims are not actionable under Title VII.

Also in March, a three-member panel of the Second Circuit issued an opinion in Christiansen v. Omnicom Group, Inc., in which it declined to hold that Title VII encompasses discrimination based on sexual orientation, citing its lack of authority to reconsider an en banc decision to the contrary handed down in 2000, Simonton v. Runyan. The plaintiff in the Christiansen case has until April 28 to file a petition for rehearing en banc.

Notwithstanding this circuit split, in light of the SAGE letter and Hively, we would encourage supervised entities to consult with their counsel and to consider revising their policies, procedures and fair lending analyses to incorporate discrimination based on sexual orientation. In doing so, supervised institutions should also be mindful of the fact that numerous state laws already prohibit discrimination in credit transactions on the basis of sexual orientation and gender identity.

The Office of Inspector General for the Fed and CFPB has issued a report on the results of an evaluation it conducted to determine whether the CFPB effectively mitigates the risk of potential conflicts of interest associated with using vendors to support fair lending supervision and enforcement.  In addition to performing fair lending analysis internally, the CFPB contracts with outside vendors to conduct fair lending enforcement analysis and expert witness services.  The OIG focused its evaluation on the CFPB’s management of one fair lending enforcement vendor’s potential conflicts of interest after the CFPB had awarded a contract to that vendor.

The CFPB’s contracts for fair lending analysis require the vendor, before performing work on a new task order, to provide a detailed written disclosure of all actual conflicts, potential conflicts, or matters that may present the appearance of a conflict under the federal regulation that guides the acquisition of goods and services by executive agencies.  (Although the CFPB takes the position that it is not required to follow this regulation because it is an independent regulatory agency, it has made a policy decision to follow the regulation for its procurements.)  The contracts also require the vendor to provide a detailed written plan explaining the steps it will take to avoid or mitigate such conflicts.

For the vendor contract it evaluated, the OIG found that the CFPB did not obtain conflict of interest disclosures or mitigation plans in conjunction with each task order.  (It noted that two task orders did not identify the companies the vendor would analyze for fair lending compliance.)  The OIG attributed the lapse in documentation to inconsistent enforcement of conflict of interest contractual provisions, inconsistent task order requirements, and a lack of clear roles and responsibilities for enforcing contract provisions.  It commented that this weakness could expose the CFPB to reputational and operational risk if a potential conflict of interest is not identified or mitigated before the vendor begins performing work that presents an actual conflict or an appearance of a conflict.  The OIG noted, however, that it did not identify any actual conflicts of interest between the vendor and the companies it analyzed.

The report contains a series of recommendations for how the CFPB can strengthen its controls for identifying and avoiding potential conflicts of interest, including ensuring that vendors comply with existing documentation requirements.  The OIG also recommended that the CFPB evaluate the potential costs and benefits of performing more fair lending analysis internally.

 

 

A Democratic congressman has raised concerns about potentially discriminatory lending practices used by fintech companies that extend credit to small businesses, calling on the CFPB “to vigorously investigate whether [such fintech companies] are complying with all anti-discrimination laws, including the Equal Credit Opportunity Act.”

In a letter to Director Cordray dated March 15, 2017, Representative Emanuel Cleaver, II, stated that fintech companies “geared toward lending to small businesses by using certain biased algorithms for creditworthiness have the potential of charging disproportionately higher rates to minority-owned businesses.”  He asserted that, as a result, it is important “to determine if minority-owned small businesses are being charged higher rates, or if they have been subject to predatory fees” by fintech companies.

In addition to urging the CFPB to launch an investigation, Rep. Cleaver requested responses to a series of questions that included when the  CFPB anticipates “finalizing regulation and guidance to fully implement” Dodd-Frank Section 1071.  Section 1071 amended the ECOA to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses.  Such data include the race, sex, and ethnicity of the principal owners of the business.  The CFPB has not yet proposed a rule to implement Section 1071.  In its Fall 2016 rulemaking agenda, the CFPB estimated a March 2017 date for prerule activities.

For more on Rep. Cleaver’s letter, see our legal alert.

The FTC has sent its annual letter to the CFPB reporting on the FTC’s activities related to compliance with the Equal Credit Opportunity Act and Regulation B.

The FTC has authority to enforce the ECOA and Reg B as to nonbank providers within its jurisdiction.  However, like the FTC’s letters on its 2014 and 2015 ECOA activities, the letter on 2016 activities does not describe any 2016 FTC ECOA enforcement activity and only contains information about the FTC’s research and policy development efforts and educational initiatives.

With respect to research and policy development, the letter discusses the following initiatives:

  • Auto survey.  In December 2015, the FTC published a notice in the Federal Register seeking comments on its plans to conduct a survey of consumers regarding their experiences in buying and financing automobiles at dealerships.  The FTC published a second notice in September 2016 seeking clearance from OMB for the survey, addressing comments received in response to the 2015 notice, and inviting further comments.  (In addition to ECOA enforcement authority, the FTC has authority to issue unfair or deceptive trade practices rules for auto dealers under Section 5 of the FTC Act.  The survey could be a prelude to such rulemaking.)
  • Big data report.  In January 2016, the FTC issued a report warning that certain uses of big data consisting of consumer information may implicate various federal consumer protection laws.  The report focused on big data’s impact on low-income and underserved populations and protected groups and discussed the potential applicability of various laws, including the ECOA, to big data practices and provided a list of ”questions for legal compliance” for companies to consider in light of these laws.
  • Fintech forum.  In June 2016, the FTC launched a series of forums exploring emerging financial technology and its implications for consumers.  The first forum focused on marketplace lending and examined how marketplace lending operates, potential consumer benefits, consumer protection issues, and the potential applicability of various consumer protection laws.
  • Report on fraud in African American and Latino communities.  In June 2016, the FTC issued a report on its work on fraud prevention, enforcement, and consumer outreach and education in African American and Latino communities.
  • Changing demographics workshop.  In December 2016, the FTC held a workshop in which the topics discussed included how the population is changing, the impact of those changes on the marketplace, concerns about auto lending and discriminatory lending, and the FTC’s future role.
  • Interagency fair lending task force.  The FTC noted its continued membership in the Interagency Task Force on Fair Lending with the CFPB, DOJ, HUD, and the federal banking agencies.

With regard to the FTC’s consumer and business educational initiatives, the FTC discussed its publication of various blog posts in 2016, including posts about its work in combating fraud, its workshop on changing demographics, its fintech forum, and its big data report.

The Independent Community Bankers of America issued a statement calling on the Trump administration “to rein in the overzealous application of fair lending laws.”  ICBA stated that community banks are threatened by a recent trend of “unwarranted enforcement actions” that “harm community banks and the customers they serve by undermining the availability of credit in local communities and throughout the economy.”

Noting the commitment of community banks to fair lending, the ICBA’s president indicated that “community banks are experiencing enforcement overreach that diverts an abundance of resources from serving their local communities to complying with and responding to unwarranted fair lending allegations.”

The ICBA’s statement noted the DOJ’s recently-filed fair lending action against KleinBank, which it called “a misguided and baseless claim against [the] family-owned [bank], a 110-year-old institution that has never been cited for fair lending violations by its primary regulator, the Federal Deposit Insurance Corp.”  The DOJ’s complaint, which relates to the bank’s residential mortgage lending business, alleges that KleinBank violated the Fair Housing Act and the Equal Credit Opportunity Act by engaging in a pattern or practice of unlawful redlining of the majority-minority neighborhoods in the Minneapolis-St. Paul metropolitan area.  From 2010 to at least 2015, the bank is alleged to have avoided serving the credit needs of individuals seeking residential mortgage loans in majority-minority census tracts in the Metropolitan Statistical Area encompassing Minneapolis and St. Paul.  For a more detailed discussion of the DOJ’s redlining claim, see our legal alert.

According to the ICBA, the KleinBank action “and similar actions directly attack the community banking model, in which hometown financial institutions serve their local communities and economies.  Requiring community banks to expand their market presence into neighboring counties would force them to alter their model and sound business practices.”

The DOJ’s focus on redlining is consistent with the fair lending focus of the CFPB, which recently identified redlining as one of its fair lending priorities for 2017.  The CFPB, in the Fall 2016 edition of Supervisory Highlights, lists factors it considers when assessing redlining risk and explains how it performs an analysis of redlining risk, such as its use of Home Mortgage Disclosure Act and census data to assess an institution’s lending patterns and its comparison of an institution to peer institutions.  These factors, which are described in detail in the Interagency Fair Lending Examination Procedures, include the CRA assessment area and the market area more generally.

Republican members of the House Financial Services Committee recently released a report, prepared by the Republican Staff of the Committee, titled “Unsafe at Any Bureaucracy, Part III: The CFPB’s Vitiated Legal Case Against Auto Lenders.”  This is the third Republican Staff report examining the automotive ECOA enforcement actions of the CFPB with respect to what its characterizes as a “dealer markup” of the wholesale buy rate established by the assignee of a retail installment sale contract (“RISC”).  We previously wrote about the first investigative report in this series, which was titled “Unsafe at Any Bureaucracy: CFPB Junk Science and Indirect Auto Lending.”  The latest report discusses two subjects.

The “Vitiated Legal Case”

The third report is devoted principally to “demonstrat[ing] that under” the Supreme Court decision in Inclusive Communities, “if the CFPB were to rely upon the legal theory it deployed in previous enforcement actions against auto financiers, its claims would not survive judicial scrutiny.”  As a threshold matter, the report asserts that disparate impact claims are not cognizable under the ECOA because the ECOA does not contain “results-oriented language” like that which the Supreme Court relied upon in holding that disparate impact claims are cognizable under the Fair Housing Act (“FHA”).   The ECOA speaks instead in terms of discriminating against an applicant on a prohibited basis.  The report further asserts that Inclusive Communities interpreted the adoption of the FHA Amendments of 1988, which it said contemplated the existence of disparate impact liability, as Congressional ratification of prior appellate decisions holding that disparate impact claims are cognizable under the FHA.  By way of contrast, however, the report notes that “Congress has made no such amendments to ECOA.”

The staff report also asserts, and contains a robust discussion of, additional reasons why the Bureau could not establish a prima facie case of disparate impact liability against an assignee of RISCs.  Specifically, for reasons discussed therein, the report concludes that: (i) the asserted “discretion” to “mark up” the wholesale buy rate is not a specific “policy” upon which a disparate impact claim may be based; and (ii) the CFPB could not meet the robust causality standard that Inclusive Communities reiterated and expounded upon in its discussion of the safeguards against abusive disparate impact claims.  Finally, the report suggests that, “[b]y asking only whether a minority [buyer] paid more than the non-Hispanic white average, the CFPB does not accurately assess whether he or she was actually harmed by the disparate impact.”

The report’s discussion of the “vitiated legal case” against assignees of RISCs concludes with the observations that “[f]uzzy logic and false comparisons are unfortunately prevalent in the” Bureau’s ECOA auto enforcement actions, as is a “lack of rigor that leads to unsupported and unreliable conclusions.”  We have written previously about some of the issues discussed in the report, including in our articles on the Supreme Court decision in Inclusive Communities, “Auto Finance and Disparate Impact: Substantive Lessons Learned from Class Certification Decisions,” and a February 2006 Business Lawyer article titled “The ECOA Discrimination Proscription and Disparate Impact – Interpreting the Meaning of the Words That Actually Are There.”

The Auto Finance Larger Participant Rule

The press release issued by the Republican members of the Committee highlights the final subject covered by the report.   Titled “CFPB Director Failed to Heed Attorney Advice on Auto Lending Rule, Likely Violated Federal Law,” the press release asserts that the Bureau may have violated the Administrative Procedures Act in adopting the larger participant rule for the automobile financing market (the “LPR”).  Quoting from the Supplementary Information accompanying the proposed LPR, the report states that the definition of a “larger participant” is “based upon ‘quantitative information on the number of market participants and their number and dollar volume of annual originations’ taken from Experian’s AutoCount database.”

According to the report, during the comment period for the proposed LPR, the Bureau received requests for a list of the companies that it believed would qualify as “larger participants” under the proposed rule, and “‘a number of comments pertaining directly or indirectly to the Experian list.’” Believing the Experian AutoCount data, and any information derived from it, to be proprietary information that it was not at liberty to disclose, the Bureau did not respond with the requested information.

The report indicates, however, that after the comment period ended, Experian informed the Bureau that it had no objection to: (i) releasing the list of the names of the entities that the Bureau estimated would be “larger participants” under the proposed volume threshold for larger participant status; and (ii) the relative market share for each listed entity.  Relying upon internal CFPB documents obtained by the Committee, the report asserts that the Bureau did not follow an internal legal recommendation to reopen the comment period, publish this information and request comments with respect to it before proceeding to adopt a final LPR for the automobile financing market.

Earlier this week, we blogged about reports that Director Cordray has no plans to leave the CFPB before his term expires in July 2018.  Yesterday, several national civil rights groups issued a joint statement applauding the CFPB’s work and expressing support for Director Cordray “as he continues to lead the CFPB in the fourth year of his five-year tenure.”  The groups are the Leadership Conference on Civil and Human Rights, NAACP, National Council of La Raza, and National Urban League.

In their statement, the groups express their view that under Director Cordray’s leadership, the CFPB “has significantly improved the lives of people across the country, especially in our diverse communities” and warn that “any effort to weaken the agency or undermine its leadership would risk severe impacts on our communities—including communities of color and low-income families who are most vulnerable to financial abuse.”  The groups tout the CFPB’s recovery of “more than $11 billion for 27 million consumers harmed by illegal, predatory financial schemes” and the CFPB’s efforts to fight “against discriminatory practices in the financial marketplace, including bringing enforcement actions to enforce fair lending laws that protect consumers of color from being charged more for a mortgage, auto loan, or credit card.”

In a blog post published last Friday, Patrice Ficklin, Associate Director of the CFPB’s Office of Fair Lending, outlined the CFPB’s fair lending priorities for 2017.

Ms. Ficklin wrote that, going forward, the CFPB will increase its focus in the following three areas:

  • Redlining: The CFPB “will continue to evaluate whether lenders have intentionally avoided lending in minority neighborhoods.”
  • Mortgage and Student Loan Servicing: The CFPB “will determine whether some borrowers who are behind on their mortgage or student loan payments may have more difficulty working out a new solution with the servicer because of their race or ethnicity.”
  • Small Business Lending: “Congress expressed concern that women-owned and minority-owned businesses may experience discrimination when they apply for credit, and has required the CFPB to take steps to ensure their fair access to credit.”

Although the CFPB entered into consent orders in 2015 and 2016 to settle claims of alleged redlining, by identifying redlining as a 2017 focus, Ms. Ficklin appears to be signaling a ramping up of CFPB enforcement activity targeting redlining in 2017.  In its Fall 2016 Supervisory Highlights issued last month, the CFPB highlighted its supervisory interest in redlining by listing the factors it considers in assessing redlining risk in examinations and describing how the CFPB conducts its analysis of redlining risk.

The CFPB has also previously signaled its interest in fair lending issues relating to mortgage and student loan servicing.  In a “Mortgage Servicing Special Edition” of its Supervisory Highlights issued in July 2016, the CFPB noted that it would be conducting targeted reviews of fair lending issues for mortgage servicers.  In a September 2016 blog post, the CFPB highlighted research that “underscores the disproportionate impact of student debt on communities of color.”

In February 2016, the CFPB released a list of its policy priority areas for the next two years that include small business lending.  That release highlighted the CFPB’s plans to build a small business lending team and begin market research and outreach for rulemaking on business lending data collection and to continue to examine small business lenders for fair lending compliance.  Dodd-Frank Section 1071 amended the ECOA to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses.  Such data includes the race, sex, and ethnicity of the principal owners of the business.  In April 2016, the CFPB announced that it had filled the position of Assistant Director for the Office of Small Business Lending Markets, whose responsibilities including leading the CFPB’s team involved in developing rules to implement Section 1071.

In stating that Congress “has required the CFPB to take steps to ensure [women-owned and minority-owned businesses] their fair access to credit,” Ms. Ficklin is presumably referring to Section 1071 rulemaking.  (In its Fall 2016 rulemaking agenda, the CFPB gave a March 2017 estimated date for prerule activities related to small business lending.)  We believe there is also a strong likelihood of  increased CFPB supervisory and enforcement activity targeting small business lending even before the completion of Section 1071 rulemaking.

Perhaps noteworthy for its absence from the areas of fair lending focus identified by Ms. Ficklin is auto finance, which has been an area of  CFPB focus for several years.  In her blog post, Ms. Ficklin commented that “we have examined over a dozen of the nation’s largest auto lenders and achieved important market awareness and movement, and we believe that a wide range of supervisory compliance solutions tailored to each lender will work to secure and advance our progress in protecting consumers.”

The CFPB’s approach to fair lending supervision and enforcement could be significantly impacted by the presidential election results.  In particular, a new CFPB Director and/or the new Attorney General may cause the CFPB to move away from its use of the disparate impact theory of liability as a basis for alleging fair lending violations.

On October 28, 2016, the U.S. Supreme Court granted the petition for a writ of certiorari in Grimm v. Gloucester County School Board, a decision of the U.S. Court of Appeals for the Fourth Circuit that marked the first time that a federal court of appeals has held that a transgender student could state a claim under Title IX when he alleges that his school denied him access to the bathroom that corresponds with his gender identity.  The CFPB is likely to use a decision by the Supreme Court that concludes the Title IX prohibition against discrimination on the basis of “sex” includes discrimination based on gender identity as support for making discrimination on the basis of gender identity and sexual orientation a focus of CFPB fair lending supervision and enforcement.

As we reported, Director Cordray sent a letter dated August 30, 2016 that responded to a letter from Services and Advocacy for GLBT Elders (SAGE) in which SAGE posed the question “whether the [CFPB] views credit discrimination on the bases of gender identity and sexual orientation, including but not limited to discrimination based on actual or perceived nonconformity with sex-based or gender-based stereotypes, as forms of sex discrimination prohibited under the [ECOA].”

Director Cordray 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 sex-based or gender-based stereotypes.”  In reaching that conclusion, he cited to Title VII cases involving alleged employment-related discrimination on the basis of sex and observes that “[i]n recent years, courts have increasingly concluded that the statutory proscriptions on sex discrimination [in Title VII] encompass discrimination motivated by perceived nonconformity with sex-based or gender-based norms, preferences, expectations, principles, or stereotypes, including those related to gender identity and sexual orientation.”

The issue before the Fourth Circuit in Grimm was whether the Department of Education’s unpublished interpretation of Title IX and a Department regulation permitting certain sex-separated facilities was entitled to deference.  The Department had interpreted Title IX and its regulation to mean that a recipient of Title IX funding providing sex-separated facilities must “generally treat transgender students consistent with their gender identity.”  According to the Fourth Circuit, the district court “reasoned that Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation,” and dismissed the complaint because it found that the Department’s interpretation was not entitled to deference.  Noting that it looked “to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX,” the Fourth Circuit reversed the district court and concluded that the Department’s interpretation was valid and entitled to deference.

In addition to the question of whether “courts should extend deference to an unpublished agency letter,” the Supreme Court granted certiorari as to the question of whether the Department’s interpretation “with or without deference to the agency…should be given effect.”  Thus, it seems likely that a decision on the merits by the Supreme Court will include whether the Title IX prohibition against discrimination on the basis of “sex” includes discrimination based on gender identity.  We would expect a decision by the Supreme Court holding that discrimination based on gender identity constitutes discrimination based on “sex” under Title IX, particularly if it relies on Title VII decisions, to further embolden the CFPB’s efforts to extend ECOA protections to gender identity and sexual orientation.