How a 2020 Supreme Court ruling opened the door to extend Fair Housing Act protections for LGBTQ Americans.
For the first time, LGBTQ Americans will be protected under the Fair Housing Act (FHA), the Department of Housing and Urban Development (HUD) announced Thursday. In a memorandum, the agency declared that it will begin enforcing the FHA to prohibit discrimination on the basis of sexual orientation and gender identity, a new move that will extend civil rights protections to millions of LGBTQ Americans.
Passed in 1968, the Fair Housing Act traditionally protected against discrimination on the basis of “race, color, religion, sex, familial status, or national origin.” Sexual orientation and gender identity were not explicitly included.
HUD’s justification for this new interpretation is a 2020 Supreme Court ruling. In Bostock v. Clayton County, the Supreme Court found in a 6-3 decision that discriminating on the basis of an individual’s gender identity or sexual orientation would necessarily require someone to be treating employees differently due to their sex. As Vox’s Ian Millhiser explained last year, Justice Neil Gorsuch lays this logic out clearly in “just five crisp sentences”:
In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
HUD’s quick work announcing these extended protections comes just three weeks after one of President Joe Biden’s Inauguration Day executive orders directed the heads of each agency to review “all existing orders, regulations, guidance documents, policies, programs or other agency actions” that prohibit discrimination on the basis of sex, and ensure that those also extend to protect against discrimination on the basis of sexual orientation and gender identity.
Department officials told reporters that HUD is the first agency to have announced implementation of this executive order, finally giving LGBTQ Americans necessary protections from discrimination.
Activists praised the move. “Today, thanks to the Department of Housing and Urban Development and President Biden, LGBTQ people can rest assured that if they are denied housing in an emergency or refused rental of an apartment because of their sexual orientation or gender identity they will have recourse under federal law,“ Human Rights Campaign President Alphonso David told Vox in a statement.
Omar Gonzalez-Pagan, a senior attorney at Lambda Legal who has worked on LGBTQ housing discrimination cases including Bostock, said, “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.”
What does this mean for LGBTQ Americans?
The FHA protects Americans from both private and government discrimination. When people are seeking to buy or rent a property, attain a mortgage, or trying to access federal programs like Section 8 housing vouchers or public housing — or any number of programs implemented by HUD — the FHA protects them from discrimination.
Under this new doctrine, LGBTQ Americans will now be able to file complaints with HUD if they feel they have been discriminated against. Additionally, HUD will have the obligation to ensure that none of its programs or grantees are using its funds in a way that discriminates on the basis of sexual orientation or gender identity.
Gonzalez-Pagan explained the dual effect of this memo. On the one hand, this change will have a “prophylactic effect” as it communicates “to real estate agents, landlords, property owners that this discrimination is not acceptable, is actually unlawful.”
He also emphasized “the utilization of the tools at the disposal of the department that private litigants may not have: to study these issues in greater detail to systematically take a view of the complaints that are being filed with HUD and see where there are patterns and to address that.” HUD can do what individuals can’t — see which private entities or local government actors are repeat offenders and take action.
Before now, when filing discrimination complaints with HUD, LGBTQ people had to make a convoluted argument about how discrimination due to “real or perceived gender identity is sex discrimination under the Fair Housing Act,” a HUD official told Vox. “And that discrimination … may be sex-based discrimination when motivated by perceived nonconformity with gender stereotypes.”
The new protections are a big deal — LGBTQ Americans experience disproportionate discrimination in the pursuit of housing, and according to the Movement Advancement Project think tank, 21 states and five territories have “no explicit prohibitions for discrimination based on sexual orientation or gender identity.”
One 2017 Urban Institute study found that housing providers told gay men about fewer available units than they told their straight counterparts and quoted them higher rent costs on average. Another study in Michigan found “behavior bordering on sexual harassment” directed toward same-sex couples and that 27 percent of the time same-sex couples faced penalties in the form of “rental rates, level of encouragement and application fees that favored the male/female test teams.”
Trans people fare worse. In one 2017 study, researchers found that trans and gender non-conforming people were discriminated against 61 percent of the time. They were “21 percent less likely to be offered a financial incentive to rent, 12 percent more likely to be told negative comments about the apartment and the neighborhood, and 9 percent more likely to be quoted a higher rental price than people who were not transgender and conformed to typical gender standards.”
The new HUD rules are an important first step to extending necessary protections to LGBTQ Americans, but enforcing the FHA is bigger than an announcement. It has been half a century since the landmark legislation passed, and discrimination on the basis of race and familial status are still rampant, showing the difficulty in regulating a lot of these interactions. Under the Trump administration, staffing and morale at HUD were decimated as career officials watched protections get rolled back and the role of the department in advancing fair housing was diminished.
As the Biden administration and HUD work to rebuild, the first step toward real enforcement will be hiring the staff to not only handle incoming fair housing complaints, but actively work to make sure federal dollars aren’t being spent on discriminatory programs or by discriminatory housing authorities and local governments.
“HUD will be working diligently in the coming months to rebuild the department,” an official told Vox.
Author: Jerusalem Demsas