HUD to Fight Discrimination Based on Sexual Orientation and Gender Identity

We’ll explain why and how—and what you can do to avoid discrimination claims.

On Feb. 11, HUD announced in a memo that its Office of Fair Housing and Equal Opportunity (FHEO) will fully enforce the Fair Housing Act to ban discrimination because of sexual orientation and gender identity. This memo was issued as a result of President Biden’s Executive Order 13988 on “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”

Executive Order 13988 requires federal agencies to conduct an assessment of all agency actions covered under federal laws that ban sex discrimination and to fully enforce those laws by expanding prohibitions on sex discrimination to include discrimination on sexual orientation and gender identity.

As a result of HUD’s assessment, HUD’s Office of General Counsel determined that “the Fair Housing Act’s sex discrimination provisions are comparable to those of Title VII of the Civil Rights Act and that they likewise prohibit discrimination because of sexual orientation and gender identity.”

Courts Concur

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 FHA’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act. So, the FHA’s ban 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.

What HUD Is Directed to Do

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 memo 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 memo 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 FHA where it finds such discrimination occurred.
• HUD will conduct all activities involving the application, interpretation, and enforcement of the FHA’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 FHA 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 HUD’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 those who alleged discrimination because of gender identity or sexual orientation that their claims may be timely for filing under this memorandum.

How to Avoid Claims

A lesbian, gay, bisexual, transgender, or queer or questioning (LGBTQ) person is protected under federal fair housing law if the discrimination is based on nonconformity with gender stereotypes. So, 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.

Examples: In the past, HUD has offered some examples:

• A transgender woman is asked by the owner of her apartment building not to dress in women’s clothing in the common areas of the property. This is a violation of the FHA’s ban on sex discrimination.
• A property manager refuses to rent an apartment to a prospect who is transgender. If the housing denial is because of the prospect’s nonconformity with gender stereotypes, then it amounts to illegal discrimination on the basis of sex under the FHA.
• A female prospect alleges that a landlord refused to rent to her because she wears masculine clothes and engages in other physical expressions that are stereotypically male.

What to do: 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 applicant’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.

Can You Collect Gender Information?

Sometimes in the application process, HUD programs ask applicants about each household member’s sex. For example, HUD’s Sample Family Summary Sheet and Citizenship Declaration have blank spacing asking for information about the member’s sex.  

Although housing providers are required to ask for this information, it’s important to note that applicants and tenants are not required to disclose this information. Gender information has no bearing on a household’s ability to meet lease requirements.

HUD’s Tenant Rental Assistance Certification System (TRACS) has been updated to allow the gender field to be left blank when completing the HUD Tenant Certification form 50059. If someone doesn’t disclose their sex or identifies their sex as something other than male or female, Item 38 on the 50059 should be left blank. The ability to leave this field blank begins when an owner converts to the new 50059 created for TRACS version 202D.