On Jan. 20, President Biden issued Executive Order 13988, titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The order directed executive branch agencies to examine further steps that could be taken to combat such discrimination. HUD became the first agency to announce that it will implement the order by administering and enforcing the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity.
On Feb. 11, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) announced it will now accept and review Fair Housing Act complaints alleging discrimination on the basis of sexual orientation and gender identity. HUD and its fair housing partners will also review prior complaints alleging discrimination on either basis from one year before the date of President Biden’s order, meaning complaints filed from Jan. 20, 2020, and later.
The Fair Housing Act (FHA) doesn’t include sexual orientation in its list of protected classes and, for most of its history, the courts haven’t interpreted the ban on sex discrimination to cover claims based on sexual orientation. But recently courts have applied the FHA’s ban on sex discrimination to claims for discrimination based on sexual orientation or gender identity—that is, discrimination against an individual whose personal characteristics don’t conform to gender stereotypes.
Executive Order 13988 and HUD’s announcement cites the Supreme Court’s 2020 decision in Bostock v. Clayton County, which found that Title VII of the Civil Rights Act of 1964, which bars sex discrimination in the workplace, includes sexual orientation and gender identity. In other words, in Bostock v. Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity.
By analogy, HUD concludes that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act. Therefore, the Fair Housing Act’s prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity. Accordingly, and consistent with President Biden’s executive order, HUD plans to enforce the FHA to prevent and combat such discrimination, according to the agency.
HUD’s FHEO investigates fair housing complaints, helps individuals obtain agreements to resolve complaints, and takes actions as needed to enforce the law. HUD’s memorandum directs the FHEO and HUD-funded fair housing partners to enforce the FHA to prohibit discrimination on the basis of gender identity or sexual orientation. Specifically, the memorandum directs the following:
A lesbian, gay, bisexual, transgender, and queer or questioning (LGBTQ) person is protected under federal fair housing law if the discrimination is based on nonconformity with gender stereotypes. If an owner or manager refuses to rent to an LGBTQ person because he believes the person acts in a manner that doesn’t conform to his notion of how a person of a particular sex should act, then the person may pursue the matter as a violation of the FHA’s ban on sex discrimination. In the past, HUD has offered some examples:
During site visits and the application process, be sure to avoid discouraging prospects from living at your site because of their sexual orientation or gender identity. Show prospects all available units within your site that meet their needs, regardless of their sexual orientation or gender identity. You may not limit an applicant’s choice of units by engaging in unlawful steering—that is, directing, encouraging, or discouraging applicants from living in certain areas or buildings within your site—because of the prospect’s sexual orientation.
Also, it’s important to treat all residents equally. You can’t refuse to make repairs or delay repairs, or evict a resident because of his or her sexual orientation or gender identity. You also can’t limit the use of site facilities or amenities based on a resident’s sexual orientation or gender identity.