LGBTQ Individuals Protected by Fair Housing Act

In honor and observation of April being Fair Housing Month, the Associaton will be doing a series of fair housing articles. We will kick off this series by discussing the Fair Housing Act as it applies to the real estate industry, and the latest protected class.

The Fair Housing Act

The Fair Housing Act of 1968, which was officially signed into law by President Lyndon B. Johnson, extended the basic discrimination protections within the 1964 Civil Rights Act into the housing market. It explicitly prohibits discrimination in the purchase, sale, rental, or financing of housing — private or public — based on race, color, national origin, religion, or sex. The act was amended in 1988 to also include familial status and disability.

In the past, discrimination based on sex referred to biological sex. Sexual orientation and gender identity were not explicitly included.

The HUD decision

This February, the United States Department of Housing and Urban Development (HUD) announced it will “administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity.” This move effectively expands civil rights protections to LGBTQ individuals seeking housing and housing-related services.

With this announcement, HUD became the first federal agency to act on an executive order from President Joe Biden, which said that — based on the 2020 Supreme Court decision in Bostock v. Clayton County — laws that prohibit discrimination based on sex should also be interpreted as prohibiting discrimination based on sexual orientation and gender identity.

In a press release, HUD Principal Deputy General Counsel Damon Y. Smith said the following:

“Enforcing the Fair Housing Act to combat housing discrimination based on sexual orientation and gender identity isn’t just the right thing to do — it’s the correct reading of the law after Bostock. 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.”

HUD’s press release also included the following statement from Jeanine M. Worden, acting assistant secretary of HUD’s Office of Fair Housing and Equal Opportunity.

“Housing discrimination on the basis of sexual orientation and gender identity demands urgent enforcement action. 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.”

Under the new directives, HUD will “accept and investigate all jurisdictional complaints” of discrimination based on gender identity and sexual orientation.

The industry response
REALTORS® have lead the charge by committing to provide equal professional service without discrimination based on sexual orientation. In 2013, that obligation was extended to include gender identity.

In a February press release, NAR publicly applauded HUD’s announcement.

“NAR has long championed LGBTQ rights in the housing market, first calling for expanded protections in 2011,” said NAR President Charlie Oppler, a REALTOR® from Franklin Lakes, N.J., and the CEO of Prominent Properties Sotheby’s International Realty. “There are few greater human needs than housing, and to exclude LGBTQ individuals from the protections afforded to other Americans is cruel. This is a just and historic decision by HUD.”

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