While housing discrimination based on "race, color, religion, sex, familial status, or national origin" has long been illegal under 1968's Fair Housing Act, the Department of Housing and Urban Development (HUD) on Thursday effectively added "housing discrimination based on gender identity or sexual orientation" to the type of complaints it will investigate, act upon, and apply funds toward.
The action comes on the heels of President Joe Biden's day-one executive order [1] instructing agencies and departments to enforce prohibitions on such discrimination. HUD officials told reporters it is the first agency to have announced implementation of this executive order.
"Housing discrimination on the basis of sexual orientation and gender identity demands urgent enforcement action,” said Acting Assistant Secretary of Fair Housing Equal Opportunity, Jeanine M. Worden. “That is why HUD, under the Biden Administration, will fully enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity or sexual orientation. 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."
According to HUD officials, various discrimination studies reveal same-gender couples and transgender people experience demonstrably less favorable treatment than their counterparts when seeking housing, specifically renting, which underscores the significance of its action. Until now, LGBTQ discrimination was not clearly defined as illegal and actionable discrimination.
"The memorandum relies on the Department’s legal conclusion that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace," according to HUD. "In Bostock v Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity. HUD has now determined that the Fair Housing Act's prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity."
Damon Y. Smith, Principal Deputy General Counsel reaffirms that legally, based on Bostock, and ethically, this is the correct move.
"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," Smith said.
Omar Gonzalez-Pagan, a senior attorney at Lambda Legal who has worked on LGBTQ housing discrimination cases including Bostock told VOX [3] reporter [4] that "Discrimination is oftentimes hard to address because you will have your inquiry about a home be rejected and you may not know why. The federal government has the tools to document complaints more systematically, to engage in deeper-level investigations, and to take more comprehensive enforcement through their office of civil rights."
In summary, Gonzalez-Pagan echoed HUD-counsel Smith, telling the news outlet, the measure communicates "to real estate agents, landlords, property owners that this discrimination is not acceptable, is actually unlawful."