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HUD Final Rule Prohibits LGBT Discrimination

by Published On: Feb 17, 2012Updated On: Feb 23, 2012

"Equal Access to Housing in HUD Programs - Regardless of Sexual Orientation or Gender Identity" is a final rule published by the U.S. Department of Housing and Urban Development (HUD) on On Feb. 3 that prohibits housing discrimination against lesbian, gay, bi-sexual or transgendered (LGBT) individuals in all HUD subsidized, insured and financing programs. 

The rule will take effect on March 5, 2012.

What the LGBT rule requires

From an assisted housing perspective, the final rule requires owners and operators of HUD-assisted or HUD-insured housing to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling; clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, will have the opportunity to participate in HUD programs.

The rule also prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant's or occupant's sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available.

While HUD is clear that this rule does not create additional protected classes in existing civil rights laws such as the federal Fair Housing Act, language in the preamble of the final rule does discuss examples of specific actions an owner/agent might take which could be perceived as and/or prosecuted under existing fair housing regulations.

HUD Sec. Shaun Donovan said in a press release that he is proud HUD has been a leader in the fight. He went on to say that this final rule would “ensure that HUD's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity… [and HUD’s] policies and procedures [would] serve as models for equal housing opportunity.”  

According to HUD, approximately 20 states, the District of Columbia and more than 150 municipalities and counties have laws specifically prohibiting housing discrimination against lesbian, gay, bi-sexual or transgendered (LGBT) individuals.

What the rule means to assisted housing owners 

As noted in the January 2011 proposed rule, the majority of HUD’s rental housing and homeownership programs already interpret the term “family” broadly. The final rule clarifies that families, who are otherwise eligible for HUD programs, may not be excluded because one or more members of the family may be LGBT or perceived to be LGBT or have an LGBT relationship.  

As such, this rule prohibits owners and operators of HUD-assisted or -insured housing from asking about an applicant's or occupant's sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available, and an FHA lender may not take such characteristics into consideration in determining the adequacy of a mortgagor’s income. 

Voluntary disclosure is not prohibited. How or whether standard inclusion of "sex; male or female" on applications will be considered or should be modified or removed is as yet unclear.  The office of multifamily housing at HUD has not issued any occupancy-related guidance so far.

HUD’s regulations for the Section 202 Supportive Housing for the Elderly and Section 811 Supportive Housing for Persons with Disabilities programs, codified in 24 CFR part 891, include broad definitions of “elderly family” and “disabled household.”  

However, as noted in the preamble to the rule, the regulations for HUD’s Section 202 Supportive Housing for the Elderly and Section 811 Supportive Housing for Persons with Disabilities programs are now revised to provide a cross-reference to “family” in 24 CFR 5.403 to  supplement the meanings already provided to “family” in 24 CFR part 891 to ensure there is no misapplication or presumptive exclusion from the changes.

So, now, in as much as project tenant selection plans attempt to define family (or as owners/agents may, in practice, consider the concept of “family” eligibility), this rule puts owners on alert that no one can be excluded based on actual or perceived sexual orientation, gender identity, or marital status.

Henceforward, the term “family” in 24 CFR 5.403 includes, but is not limited to, regardless of marital status, actual or perceived sexual orientation, or gender identity, the following:

  1. A single person, who may be an elderly person, displaced person, disabled person, near-elderly person, or any other single person.
  2. A group of persons residing together, and such group includes, but is not limited to: 
  • A family with or without children (a child who is temporarily away from the home because of placement in foster care is considered a member of the family).
  • An elderly family.
  • A near-elderly family.
  • A disabled family.
  • A displaced family.
  • The remaining member of a tenant family.

Not a new protected class, but certain related actions could be prosecuted as such 

The Fair Housing Act prohibits discrimination based on race, color, national origin, religion, sex, disability, and familial status. Sexual orientation and gender identity are not identified as protected classes in the Fair Housing Act.  

HUD clarifies that, while these additional program requirements do not create additional protected classes in existing civil rights laws such as the federal Fair Housing Act, specific actions owner/agents might take could be perceived as and/or prosecuted under existing fair housing regulations

As one example, the final rule discusses how violation of the Fair Housing Act’s prohibition of discrimination on the basis of sex prohibits discrimination against LGBT persons in certain circumstances, such as those involving nonconformity with gender stereotypes, could include harassment such as "when a housing provider infers a person’s sexual orientation or gender identity based on stereotypes, appearances, mannerisms, or information from a third party."  

A direct quote from the preamble of the rule reads:

"If an LGBT person experiences any of the forms of discrimination enumerated in the Fair Housing Act, such as race or sex discrimination, that person can invoke the protections of the Fair Housing Act to remedy that discrimination. Discrimination based on sex under the Fair Housing Act includes discrimination because of nonconformity with gender stereotypes. For example, if a PHA denies a voucher to a person because the person does not conform to gender stereotypes, that person may file a Fair Housing Act complaint with HUD alleging sex discrimination."

And another: 

"HUD may also have jurisdiction to process a complaint filed under the Fair Housing Act if an LGBT person obtains housing but then experiences discrimination in the form of sexual harassment. Sexual harassment is illegal under the Fair Housing Act if the conduct is motivated by sex and is either so severe or pervasive that it creates a hostile environment or the provision of housing or its benefits is conditioned on the receipt of sexual favors (for example, as a quid pro quo). Harassment may be motivated by sex if, for example, it is due to the landlord’s view that the tenant’s appearance or mannerisms fail to conform with stereotypical expectations of how a man or woman should look or act. Housing owners or operators may be liable for their own actions or the actions of their employees or other residents."

Additional guidance and interpretation is likely to come at some time, and we will be sure to report on it then.. 

Additional LGBT resources

You can view additional Office of Fair Housing information explaining LGBT discrimination.

 



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