HUD Announces New Approach to Sexual Orientation and Gender Identity Discrimination Under the Fair Housing Act

By Nick Adjami
March 9, 2021

On January 20, 2021, President Biden issued an executive order directing all federal agencies to interpret protections against discrimination based on sex to include discrimination based on sexual orientation, gender identity, and gender expression. On February 11, the Department of Housing and Urban Development (HUD) issued a memorandum announcing its implementation of that order. Accordingly, the agency “will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity.”

The Fair Housing Act, passed in 1968, prohibits housing discrimination on the basis of race, color, national origin, religion, disability, familial status, and sex. Some cities and states chose to explicitly protect against discrimination on the basis of sexual orientation as early as the 1970s. Federally, however, protection has been scarce. HUD made progress with the implementation of “Equal Access” rules in 2012 and 2016, which protected against sexual orientation and gender identity discrimination in HUD-funded programs, but the 2021 memorandum marks a distinct advancement by also protecting LGBTQ individuals in housing that is not HUD-funded.

The Biden administration’s decision to enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity stems from the Supreme Court’s 2020 decision in Bostock v. Clayton County. The court ruled that “an employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act of 1964, which prohibits sex discrimination. This decision opened the door for sex discrimination protections in other statutes, like the Fair Housing Act, to be re-examined as well.

The LGBTQ community has suffered persistent discrimination and will benefit from federal anti-discrimination protection. At the tail end of the Obama Administration, HUD sponsored a study to investigate discrimination based on sexual orientation and gender identity in the rental market using matched-pair testing. That study, produced in collaboration with the Equal Rights Center, found that housing providers told gay men about fewer available units and quoted average yearly rent costs $272 higher compared to straight men. Transgender testers were similarly told about fewer available units than were their cisgender counterparts. When HUD issued its newest memorandum on these topics in February, it finally published this study on its own site.

Similarly, in 2013, the ERC used matched-pair testing to investigate LGB people’s access to senior housing across ten states. The resulting report revealed discrimination as a significant barrier for older LGB individuals seeking housing. In 48 percent of tests conducted, the LGB tester experienced at least one type of adverse, differential treatment, such as being quoted a higher rent amount or being subjected to additional fees. The report also revealed that states with statewide anti-discrimination laws “generally fared better” than the states without sexual orientation protections. These results suggest that HUD’s nationwide prohibition of sexual orientation and gender identity discrimination in housing will have a real, positive impact for LGBTQ people across the country, especially in states without local protections.

HUD’s memorandum marks an important step toward LGBTQ equality. Further progress, however, requires the explicit codification of sexual orientation and gender identity anti-discrimination protections into law. Without explicit legislation, a subsequent administration could take a narrower interpretation of the Fair Housing Act, leaving hundreds of thousands of LGBTQ Americans without adequate protection from housing discrimination.

The Equality Act would amend the Civil Rights Act of 1964 and Fair Housing Act to explicitly prohibit discrimination based on sexual orientation and gender identity. The House of Representatives voted on February 25, 2021 to pass the Act. It now moves to the Senate, where its fate is uncertain.

We at the Equal Rights Center are eager to work with HUD to enforce fair housing protections for the LGBTQ community. We have seen the good that can come from such protections in our home community – sexual orientation discrimination has been illegal in the District of Columbia since 1973 – and we celebrate this next step in advancing equality nationwide.

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If you believe you may have experienced discrimination in housing, you can contact the Equal Rights Center. To report your experience, please call 202-234-3062 or email info@equalrightscenter.org.

The information contained in this publication is not legal advice and should not be construed as such.

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