HUD Prohibits Sexual Orientation, Gender Identity Discrimination

By Kerry Smith

HUD now considers sexual orientation and gender identity to be protected classes under the Fair Housing Act, calling its change “the correct reading of the law.”

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) announced that the Fair Housing Act prohibits discrimination on the basis of sexual orientation and gender identity.

HUD’s Office of Fair Housing and Equal Opportunity (FHEO) made the announcement in a memorandum, which says HUD interprets the Fair Housing Act to bar discrimination on the basis of sexual orientation and gender identity and direct HUD offices and recipients of HUD funds to enforce the Act accordingly.

The memorandum implements policy in President Biden’s Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, which directed executive branch agencies to examine further steps that could be taken to combat such discrimination.

HUD “will fully enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity or sexual orientation,” says Acting Assistant Secretary of FHEO, Jeanine M. Worden. “Every person should be able to secure a roof over their head free from discrimination, and the action we are taking today will move us closer to that goal.”

Why the change?

In making the announcement, HUD said that “a number of housing discrimination studies … indicate that same-sex couples and transgender persons in communities across the country experience demonstrably less favorable treatment than their straight and cisgender counterparts when seeking rental housing.” However, it’s been “constrained” due to legal uncertainty about whether this type of discrimination was “within HUD’s reach.”

HUD says it legally believes the Fair Housing Act covers LGBTQ and transgender discrimination because it’s “comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace.” While the U.S. Supreme Court hasn’t ruled on the Fair Housing Act, it did hear a court case (Bostock v Clayton County) about the Civil Rights Act and ruled that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity.

HUD says it’s extending that ruling to Fair Housing Act protections.

“Enforcing the Fair Housing Act to combat housing discrimination based on sexual orientation and gender identity isn’t just the right thing to do – it’s the correct reading of the law after Bostock,” says HUD Principal Deputy General Counsel Damon Y. Smith. “We are simply saying that the same discrimination that the Supreme Court has said is illegal in the workplace is also illegal in the housing market.”

Planned enforcement actions

The memorandum directs actions by HUD’s Office of Fair Housing and Equal Opportunity and HUD-funded fair housing partners to enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity or sexual orientation. Specifically, the memorandum directs the following:

• HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds discrimination occurred.

• HUD will conduct all activities involving the application, interpretation and enforcement of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that it includes sexual orientation and gender identity.

• State and local jurisdictions funded by HUD’s Fair Housing Assistance Program (FHAP) that enforce the Fair Housing Act through their HUD-certified substantially equivalent laws must prohibit discrimination because of gender identity and sexual orientation.

• Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program (FHIP) must also prevent and combat discrimination because of sexual orientation and gender identity in HUD-funded activities.

• FHEO Regional Offices, FHAP agencies and FHIP grantees are instructed to review, within 30 days, all records of allegations (inquiries, complaints, phone logs, etc.) received since Jan. 20, 2020, and notify anyone alleging discrimination because of gender identity or sexual orientation that their claims may be “timely and jurisdictional for filing under this memorandum.”

© 2021 Florida Realtors® Reprinted with Permission.

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