The U.S. Department of Housing and Urban Development (HUD) announced Thursday it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity.
In a memorandum, HUD notes the policy set forth in President Joe 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 offices and recipients of HUD funds will enforce the policy immediately, said Jeanine Worden, acting assistant secretary of HUD’s Office of Fair Housing and Equal Opportunity.
“Housing discrimination on the basis of sexual orientation and gender identity demands urgent enforcement action,” Worden said. “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.”
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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 such 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 such discrimination includes discrimination because of 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 will be required to administer those laws to 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 carry out their funded activities to also prevent and combat discrimination because of sexual orientation and gender identity.
- 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 persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional for filing under this memorandum.
Sexual identity discrimination will also not be tolerated, HUD officials said. Per the outcome of Supreme Court case Bostock v Clayton County, the Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity.
“Unfortunately, housing discrimination is the lived reality for many LGBTQ people in our country – and this is especially true for the transgender community,” said Erin Uritus, CEO of Out and Equal Workplace Advocates. “Housing is basic human right. “Thankfully, President Biden is bringing the full force of the federal government to bear so that no LGBTQ American will be denied a roof over their head just because of who they are or who they love.”
Studies have indicated 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, per HUD officials.
“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,” said Damon Smith, principal deputy general counsel. “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.”
On Tuesday, the Department of Justice withdrew HUD’s appeal of a case postponing the agency’s 2020 Disparate Impact Rule that would have made it harder to bring discrimination claims under the Fair Housing Act.
By withdrawing the appeal, the preliminary injunction under the case Massachusetts Fair Housing Center v. HUD will continue to delay implementation on the rule. According to DOJ court documents, HUD, along with HUD Acting Secretary Matt Ammon voluntarily moved to dismiss the appeal.
The rule, initially enacted in 2013 under the Obama administration, drew significant backlash from the housing industry after changes to the rule were made under former President Trump last year.
Criticism was especially apparent after then-HUD Secretary Ben Carson issued updated guidelines that imposed a specific, five-step approach that required regulators to prove intentional discrimination on the lender’s behalf.
Under HUD’s previous rule, lenders, landlords and other housing providers could be held liable for discrimination against protected classes even if it was not their intent to discriminate. The use of disparate impact was challenged all the way up to the U.S. Supreme Court, which upheld the rule in 2015.
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