HUD Announces Fair Housing Protections for LGBTQ Americans
On February 11, 2021, HUD announced that 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 proactively review prior complaints alleging discrimination on either basis from one year before the date of President Biden’s Executive Order 13988, which is titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” meaning complaints from January 20, 2020 and later.
HUD is the first agency to implement President Biden’s day-one Executive Order 13988, which states that “All persons should receive equal treatment under the law, no matter their sexual orientation or gender identity” and tasks Federal agencies with reviewing all agency actions and rules to root out inconsistencies with the executive order’s policy that all Americans “should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.”
Executive Order 13988 cites the Supreme Court’s 2020 decision in Bostock v. Clayton County, which found that the prohibition on discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity. By analogy, all other nondiscrimination laws prohibiting sex discrimination, including the Fair Housing Act, prohibit discrimination against LGBTQ (lesbian, gay, bisexual, transgender and queer or questioning) individuals.
In a stakeholder briefing call led by the White House and HUD, Acting Assistant Secretary for Fair Housing and Equal Opportunity (FHEO) Janine Worden emphasized the prevalence of anti-LGBTQ discrimination across the country and indicated that this policy change impacts Fair Housing Act claims on any legal theory, including disparate impact, and generally applies to emergency shelters. While no specifics were given about how HUD will act regarding the Trump Administration’s proposed rule to circumscribe transgender people’s rights when seeking shelter, which Enterprise opposes, FHEO Special Policy Advisor Chang Chiu reaffirmed the Biden-Harris Administration’s commitment to ensuring LGBTQ Americans receive the full protection of the law.
HUD will be working with its fair housing partners to review claims and do outreach to the LGBTQ community to spread the word about this policy change. Enterprise applauds HUD for taking this important step towards addressing housing discrimination against LGBTQ individuals, and we look forward to working with HUD’s administration on advancing and strengthening fair housing protections.