In another groundbreaking victory for the LGBT community, the U.S. Department of Housing and Urban Development announced a finalized version of a long-awaited rule against LGBT housing discrimination, which went into effect on March 5. The new rule, “Equal Access to Housing in HUD Programs regardless of sexual orientation or gender identity” or “the LGBT rule” for short, will extend already-existing protections to the LGBT community, as well as our non-married heterosexual counterparts. This new rule is in large part a reaction of the Office of Fair Housing and Equal Opportunity to studies performed by groups such as the National Gay and Lesbian Task Force, as well as their experiences at LGBT housing discrimination forums around the country.
In describing the impetus behind the LGBT rule, John D. Trasviña, Assistant Secretary of the Office of Fair Housing and Equal Opportunity, used an example of a couple, Mitch and Michelle, who were living together with their children like any other family. However, Mitch had been denied the opportunity to add Michelle to his public housing voucher. Mitch is transgender. He and Michelle did not fit into the public housing authority’s definition of family. This was not surprising after the results of the National Gay and Lesbian Task Force’s study, entitled “Injustice at Every Turn,” were revealed. Over 6,450 transgender people were surveyed, spanning many different sub-demographics, on their experiences with discrimination in a host of areas, including housing. The survey found that 19 percent of participants had been refused housing because of their gender identity, while an equal number had been homeless at some point of their life because of their gender identity. Further, 55 percent of participants who had tried to access shelters were harassed, while 29 percent were flat-out turned away.
The data revealed what the surveyors had feared: A significant level of housing instability existed in the transgender community as a result of gender-identity discrimination. Another study used by HUD in evaluating the need for the added protections, the Michigan Fair Housing Centers Study, also showed a high rate of differential treatment toward same-sex couples. Participants posed seeking housing as either same-sex couples or opposite-sex couples. In 32 out of 120 tests, same-sex couples received discriminatory or differential treatment as to whether housing was available, the rental price of the housing, the price of application fees and the levels of encouragement. Additionally, same-sex couples were often subject to offensive commentary by the housing providers.
The LGBT rule cites both studies as proof of its necessity, also acknowledging that the new protections help further HUD’s organizational mission. HUD aims to create strong, sustainable and inclusive communities and quality affordable homes for everyone. Congress has given HUD the legal authority to fulfill this mission through numerous statutes, mandating that HUD should work to address the needs and interests of the nation’s communities and the people who live and work in them. Without much-needed protection for LGBT individuals, this cannot be accomplished.
The LGBT rule will protect LGBT and non-married heterosexual individuals from being singled out and discriminated against by any HUD-assisted or Federal Housing Authority-insured housing providers, as well as FHA lenders. It has five major components: definitions of sexual orientation and gender identity; a general equal access provision; clarification of HUD’s family definition; prohibition on inquiries related to sexual orientation and gender identity; and the addition of sexual orientation and gender identity to existing FHA equal-access regulations. Essentially, by clarifying the definitions of family, sexual orientation and gender identity, and then weaving them into pre-existing legal protections, HUD expanded coverage to LGBT individuals. Clarification of “family” is particularly important, as this definition directly affects who is eligible for a housing voucher and who can be added to it, who can live in public housing and who can be considered a family member instead of an unauthorized guest in a public housing unit. HUD’s interpretation of its “gender identity” definition is also significant. In addition to barring housing discrimination based on marital status, sexual orientation or gender identity, the new HUD protections prohibit inquiries of an applicant or occupant’s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available. Further, prohibition on considering someone’s sexual orientation, gender identity or marital status as grounds for housing or loan discrimination extends beyond the initial application period until the end of the tenancy. This ensures that housing or loan providers cannot legally discriminate after accepting applications if they later discover or are told of a person’s LGBT status.
As expressed in the final preamble, interpretations of the definition will include “expression of gender-related characteristics not stereotypically associated with a person’s designated sex at birth.” No individual will require surgery or hormone treatments in order to be covered by this rule. All of HUD’s programs have been updated to include these definitions and are subject to the new regulations. There is no exemption for religious housing providers, but private housing providers who neither receive HUD funds and nor have a Federal Housing Authority insured loan are not subject to the new regulations.
While the LGBT rule will have sweeping effect nationwide, there will be individuals in small and big towns alike who will continue to face discrimination. If you experience this type of prohibited discrimination, contact your local HUD office. A list of offices can be found at www.hud.gov/localoffices. The LGBT rule is a start to gain protection at the federal level, and hopefully HUD is the first of many federal agencies to begin implementing such safeguards for the LGBT community.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com
and she maintains two blogs, www.phillygaylawyer.com