Discrimination based on an individual’s sexual orientation or gender identity are now considered types of “sex” discrimination prohibited by the federal Fair Housing Act (FHA), according to a February 11, 2021, memorandum issued by HUD.
In the memorandum, HUD recognized that,
courts and governments have routinely withheld legal legitimacy from loving couples because of their sex and denied many persons the freedom to express a gender that defies norms. These injustices have perpetuated across our civic institutions: the workplace, the marketplace, places of education, and many others. But among the most personal and fundamental of these institutions is housing, where, when granted the protection of fair housing law, we all can enjoy the happiness and freedom to love whom we choose and to safely express who we are.
HUD’s memorandum further stated that “effective immediately,” it would investigate complaints of discrimination because of gender identity or sexual orientation as types of sex discrimination under the FHA.
In support of this new interpretation, HUD’s memo cites to President Biden’s January 20, 2021, Executive Order 13988, titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” as well as a June 2020 U.S. Supreme Court decision, Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).
While the Bostock decision did not analyze the FHA, it held that “sex” discrimination under Title VII, which prohibits employment discrimination, includes discrimination based on sexual orientation and gender identity. Id. at 1741-42, 1750. In its new memorandum HUD stated that its “Office of General Counsel has concluded that the Fair Housing Act’s sex discrimination provisions are comparable to those of Title VII and that they likewise prohibit discrimination because of sexual orientation and gender identity.”
The FHA prohibits discrimination “because of” race, color, religion, national origin, sex, familial status, and disability in most housing matters. 42 USC 3604(a)-(f). When “sex” was added as a protected group under the FHA in 1974, the term was not defined, and many assumed it referred simply to whether one was female or male. Although over 22 states and several cities have added explicit protections against discrimination based on sexual orientation and gender identity, those terms are not explicitly listed as protected classes in the federal Fair Housing Act.
The Bostock decision and HUD’s new interpretation of “sex” discrimination follow a long line of cases and rules examining discrimination based on sexual orientation, gender identity, and gender expression. In 1989, the Supreme Court issued a decision in another employment discrimination case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which a female employee sued her former employer alleging that she was denied a promotion because she was “too aggressive” (although that was a characteristic admired in the male employees) and not “feminine” enough. Id. at 250-51. The court held that such a claim was covered by Title VII, as “sex” discrimination includes “non-conformity with traditional gender stereotypes.”
In 2010, the U.S. Department of Housing and Urban Development issued a memorandum summarizing specific procedures for the assessment of housing discrimination administrative complaints involving sexual orientation, gender identity, and gender expression. Specifically, this memorandum reaffirmed that “sex” discrimination included situations where a housing provider made an adverse decision based on “nonconformity with traditional gender stereotypes” – the same type of sex discrimination outlawed in Price. This memorandum remains in effect today.
HUD took additional affirmative steps to explicitly protect members of the LGBTQ+ community in 2012 by issuing its “Equal Access Rule.” The regulation prohibited housing discrimination based on sexual orientation and gender identity in HUD-funded or HUD-insured housing, including Public Housing Authorities and HUD-funded shelters. The regulation also remains in effect today.
Since then, several courts have held that LGBTQ+ individuals are protected from discrimination in private housing. For example, in 2017, a Colorado District Court issued a decision finding that refusing to rent based on an applicant’s sexual orientation can constitute sex discrimination under the federal FHA. Smith v. Avanti, 249 F. Supp. 3d 1194, 1200 (D. Colo. 2017). In 2018, the 7th Circuit Court of Appeals issued a decision that reaffirmed that discrimination because of sexual orientation constitutes “sex discrimination” under the FHA and held a housing provider liable for the harassment committed by other residents. Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856, 862 (7th Cir. 2018).
The new HUD interpretation will also apply to local and state governments that receive HUD funding through the Fair Housing Assistance Program (FHAP) and to nonprofit agencies receiving funding through the Fair Housing Initiatives Program (FHIP). In North Carolina, there are six FHAP agencies: the North Carolina Human Relations Commission, the Charlotte-Mecklenburg Community Relations Committee, the Durham Human Relations Commission, the Greensboro Human Rights Department, the Orange County Human Relations Commission, and the Winston-Salem Human Relations Commission. Legal Aid of North Carolina is a recipient of FHIP funding.
More from this Newsletter Issue: Winter 2021
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