Avoiding Discrimination on the Basis of Sexual Orientation & Gender Identity

HUD is stepping up enforcement of the laws banning LGBT discrimination.

 

Like most social legislation, fair housing laws must be constantly reworked as the values they reflect evolve and advance. But laws change in different ways. The most familiar model is enactment of new legislation to amend the law. That’s what happened in 1974 when Congress added sex to the list of classes protected against discrimination under the federal Fair Housing Act of 1968 (FHA)—and again in 1988 when Congress added handicap (disability) and familial status (families with children) to the FHA.

Laws can also change behind the scenes via regulations written by the agency that administers and enforces them. Regulations carry the force of law, but because they’re non-legislative in nature, they can be adopted by the presidential administration in power at any given time without a Congressional vote.

In the context of federal fair housing, the key regulatory agency is the U.S. Department of Housing and Urban Development (HUD). Over the past decade, HUD has exercised its regulatory powers to protect a group that experiences widespread housing discrimination but that isn’t listed as a protected class under the FHA: members of the lesbian, gay, bisexual, and transgender (LGBT) community.

In 2017, HUD commissioned its first-ever pilot study using paired testing to evaluate the extent of LGBT discrimination in rental housing. The study offered scientific validation of something demonstrated by previous research—namely, that LGBT couples and individuals get treated less favorably than their heterosexual and cisgender counterparts. For example, the HUD study found that:

• Compared with heterosexual men, gay men were told about one fewer available rental unit for every 4.2 tests and were quoted average annual rental costs that were $272 higher (although these disparities were far less pronounced between lesbians and heterosexual women); and
• Housing providers told transgender testers about fewer units than they told cisgender testers, although they quoted both groups the same basic rent and average net yearly costs.

The variance in the data by race and city was almost nonexistent. Implication: Whatever discrimination the testers experienced was attributable to their being LGBT.

Three years after the HUD study, the Biden administration took office. And in a matter of weeks, it took dramatic new regulatory action to end LGBT discrimination in not just housing but all aspects of public life. As a result of these actions, landlords across the country must intensify their efforts to combat discrimination against members of the LGBT community.

Accordingly, this month’s lesson is dedicated to LGBT discrimination. First, we’ll explain the current laws banning LGBT discrimination, including the new Biden measures. Then we’ll set out eight rules to help you avoid inadvertent LGBT discrimination. We’ll finish up the lesson with the Coach’s Quiz, so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The FHA bans housing discrimination on the basis of race, color, religion, sex, national origin, familial status, and handicap (disability). Notice that LGBT isn’t on that list. So, why is LGBT discrimination illegal? The answer stems from two sets of laws.

1. Federal Anti-LGBT Discrimination Regulations

HUD believes that LGBT discrimination violates the FHA and has created regulations to outlaw it. How can HUD do this, you may be wondering. After all, having regulatory power doesn’t give HUD the right to rewrite the FHA and add protected classes at random; the agency must be able to justify the regulation as a legitimate interpretation of the FHA.

First, HUD contends that banning LGBT discrimination advances the anti-discrimination public policy on which the FHA is based. “At the core of this Department’s housing mission is to ensure that all people peacefully enjoy a place they call home, where they are safe and can thrive, free from discrimination and fear,” according to the agency. “Yet, this ideal remains unrealized for lesbian, gay, bisexual, transgender, and queer-identifying persons.”

But public policy isn’t enough. The agency also must point to something within the actual FHA law that could be read as banning LGBT discrimination. The crucial link is the part of the law banning housing discrimination on the basis of sex. According to HUD:

• Discrimination based on real or perceived gender identity is a direct form of sex-based discrimination; and
• Discrimination based on a person’s sexual orientation may also constitute sex-based discrimination when it’s motivated by “perceived nonconformity with gender stereotypes,” like the perception that women should act in a “feminine” way and men should act in a “masculine” way.

Subsequently, HUD’s view that the FHA bans LGBT discrimination was supported by court cases finding that such discrimination was illegal in the context of employment under Title VII of the Civil Rights Act. The most important of these cases was a 2020 U.S. Supreme Court decision called Bostock v. Clayton County.

The 2012 HUD Equal Access Rule: HUD’s first regulatory action to ban LGBT discrimination came on Feb. 3, 2012, with issuance of the “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” Rule (Equal Access Rule). But while it made a dramatic statement, the Equal Access Rule’s practical effect was somewhat limited because it applied only for purposes of determining eligibility for HUD mortgages and financing. The rule didn’t cover non-federally assisted apartment communities over whom HUD had no financial control.

In 2016, HUD issued the “Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs Rule” (2016 Rule) requiring HUD-supported operators of single-sex projects to provide services regardless of an individual’s gender identity.

The other factor limiting the Equal Access Rule’s impact was politics. The Trump administration was far less interested than its predecessor in aggressively enforcing FHA laws. The administration also revoked the 2016 rule to allow homeless shelters to turn away transgender females.  

The 2021 Biden Actions: Elections have consequences, especially presidential elections. This became evident on Inauguration Day, Jan. 20, 2021, when the new president issued “Executive Order 13988 Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” calling on all federal agencies, including HUD, to mobilize all of their power and resources to root out LGBT discrimination in their respective areas of jurisdiction.

On Feb. 11, HUD became the first agency to implement the Executive Order by issuing a new memorandum outlining its plan of attack. The HUD Memorandum reaffirms the administration’s position that LGBT discrimination violates the FHA and cites the 2020 Bostock case. The upshot of the Memorandum is that HUD will now treat LGBT discrimination complaints the same way it treats complaints based on race, religion, sex, and other protected classes listed in the FHA. The policy also applies retroactively to complaints received since Jan. 20, 2020.

Bottom Line: Although the change has been implemented via regulation rather than legislation, discriminating against renters and residents on the basis of their LGBT status is now recognized as an FHA violation. And this will be true for at least as long as the Biden administration remains in office.

2. State Anti-LGBT Discrimination Laws

Landlords must comply not only with the FHA but also with the anti-discrimination laws of their state (and municipality) to the extent those requirements are more stringent. And that happens to be the situation in the majority of the states that ban LGBT-based housing discrimination.

Currently, 21 states and the District of Columbia have adopted laws expressly banning housing discrimination on the basis of sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Utah, Vermont, Virginia and Washington.

Six states follow the current federal approach—that is, they treat sexual orientation and gender identity complaints the same as other recognized fair housing complaints even though the state law doesn’t expressly ban it: Florida, Kansas, Nebraska, New Mexico, North Dakota, and Pennsylvania.  

One state, Wisconsin, bans housing discrimination on the basis of sexual orientation but not gender identity.

8 RULES FOR AVOIDING LGBT DISCRIMINATION

Now that you understand why you can be liable for LGBT discrimination regardless of where you operate or whether the housing you provide is federally assisted, let’s talk about what you must do to manage your liability risks.

Rule #1: Make Sure You Understand Whom the Law Protects

HUD doesn’t use the term “LGBT” in its regulations. Instead, it affords protections to people on the basis of:  

• Sexual orientation, which includes homosexuality, heterosexuality, or bisexuality; and
• Gender identity, which refers to an individual’s personal sense of being a male, female, a blend, or neither.

Some state and local laws also extend protection on the basis of “gender expression,” which refers to outward appearance of gender identity, typically expressed through clothing, behavior, voice, or hairstyle.  

As with other protected classes, you can’t necessarily tell whether an individual is a member of the LGBT community just from their appearance or behavior. But that should have absolutely no bearing on your compliance as long as you follow the golden rule of treating all of your rental prospects and residents equally, fairly, respectfully, and consistently, without regard to their personal characteristics.

Rule #2: Don’t Let Sexual Stereotypes Affect Your Decisions or Behavior

When you do know—or think you know—that the person you’re dealing with is part of the LGBT community, you must avoid stereotypes based on how you believe people of a particular gender should behave and who they should and shouldn’t have sex with. Examples of pitfalls to avoid:

• Refusing to rent to an otherwise qualified gay couple because you believe that homosexuality is a sin;
• Asking a transgender resident not to dress in women’s clothing in the common areas of the building; and
• Refusing to rent to a gay male because you fear he has AIDS.

EXAMPLE: In April 2017, a U.S. district judge handed down one of the first cases finding LGBT discrimination under the FHA by ruling against a Colorado landlord who refused to rent a home to a married lesbian couple. When asked for a reason, the landlord cited the couple’s “unique relationship.” According to the court, the landlord’s “stereotypical norms are no different from other stereotypes about women, such as the way they should dress or act” [Smith v. Avanti, 249 F. Supp. 3d 1194].

Rule #3: Don’t Ask Questions About Sexual Orientation or Gender Identity

The 2012 HUD Equal Access rule expressly bans landlords from asking rental applicants questions about sexual orientation or gender identity for purposes of determining their eligibility. States that ban LGBT housing discrimination follow the same rule, which is interpreted broadly as also banning inquiries about:

• The applicant’s gender expression (for example, asking a female applicant why she has a crewcut);
• The relationship between household members (for example, asking if those members are in a sexual relationship);
• An applicant’s marital status; and
• The name of the applicant’s spouse or significant other.

Explanation: All of these questions elicit information that is—or at least should be—completely irrelevant to the applicant’s qualifications. And limiting pre-rental inquiries to information relevant to the rental process is something every landlord should already be doing to ensure FHA compliance. As a result, avoiding these taboo questions shouldn’t pose much of a challenge.

Coach’s Tip: The HUD ban on questions about sexual orientation or gender identity includes a loophole: It’s okay to make “lawful inquiries” about an applicant or occupant’s sex where the housing provided involves the sharing of sleeping areas or bathrooms. But the guidelines accompanying the rule suggest that the exception applies primarily in emergency shelters for homeless persons where sleeping or bathroom areas are shared to ensure privacy. In addition, applicants can voluntarily disclose information about their sexual orientation or gender identity, such as if they have safety concerns.

Rule #4: Beware of Inadvertently Discriminatory Application Processes

Review your current application system to ensure that it doesn’t contain any potentially troublesome processes or requirements. One potential issue to look out for, according to Texas fair housing consultant Anne Sadovsky, involves the number of applications or fees you require when renting to couples. It’s not unusual, Sadovsky explains, for communities to require married couples to fill out just one application and pay one fee, while requiring unmarried couples to complete separate forms and pay separate fees. This practice is based on the assumption, often valid, that married couples have joint credit and thus require only a single credit check. But while this practice may seem neutral and nondiscriminatory on its face, it may have the effect of discriminating against same-sex couples.

Some of the states that ban discrimination on the basis of sexual orientation, like Washington, have guidelines allowing landlords to have a “one fee for married couples and two fees for unmarried couples” policy. But it’s unclear whether HUD would allow this practice, especially in states that don’t recognize the exception. Accordingly, the safe strategy is to impose the same application and fee requirements on all couples, regardless of marital status. And if you do have separate rules for married couples, make sure they apply to all married couples, both heterosexual and same-sex couples.

Rule #5: Beware of Inadvertently Discriminatory Advertising

Advertising that indicates a preference for or against particular types of renters on the basis of protected class is a form of housing discrimination that the FHA bans. So, review your advertising and marketing materials to ensure that they don’t contain any images or phrases—such as “traditional couples” or “Christian community”—that could be deemed as LGBT discrimination. If you include pictures of couples in your ads, it could be problematic if they’re all opposite-sex or, for that matter, same-sex, couples.

Rule #6: Beware of Steering

As with any other protected class, steering is a significant concern when dealing with LGBT rental applicants. Steering occurs when a housing provider tries to influence rental prospects’ choice in housing based on their protected characteristics.

The most common form of steering is when the landlord, manager, or leasing agent tries to persuade applicants not to rent at the community. It may be the product of simple prejudice or a desire to placate the prejudices of current residents who don’t want “such people” as neighbors. In many cases, people doing the steering have innocent motives and sincerely believe that excluding renters on the basis of their protected class is actually in their own best interests—for example, out of concern for their safety or how uncomfortable they’d feel living in the community.

At the end of the day, why providers engage in steering is irrelevant. The important thing to recognize—and ensure that your leasing agents recognize—is that trying to influence applicants’ decisions because they’re part of the LGBT community is strictly illegal, regardless of motive.

Coach’s Tip: For more on this topic, see the Coach’s March 2021 lesson, “How to Steer Clear of Illegal Steering.”

Rule #7: Don’t Discriminate Against Your Current LGBT Residents

Risk of discrimination continues after rental applicants from protected classes sign a lease and move into the community to the extent they’re treated less favorably during their tenancy. One example would be not to let transgender residents use the common area restrooms. Other practices that would be illegal when based on a resident’s sexual orientation or gender identity:

• Refusing to make repairs or provide other building services;
• Charging higher rents or additional fees;
• Limiting access or use of common areas and amenities, including restrooms; and
• Banning public displays of affection (unless the rule applies to all residents).

Rule #8: Protect LGBT Residents Against Harassment

Harassing residents on the basis of their LGBT status is considered a form of illegal sex harassment banned by the FHA. Examples:

• Using slurs like “faggot” or “dyke”;
• Leaving harassing messages on the door or phone; or
• Throwing objects at or physically attacking a person.

You don’t have to actually commit harassment to get into trouble; you can also be held liable if you know a resident is suffering harassment at the hands of another tenant or third party and don’t take action to stop it.

EXAMPLE: Over a 15-month period, an openly lesbian resident of a senior housing community suffered harassment from her neighbor. In addition to the constant verbal abuse (“f*** faggot,” “homosexual bitch,” among other phrases), the resident was smacked in the back of the head and pushed off her motor scooter. The landlord not only ignored her constant complaints but actually contrived a plan to evict her.

Thus, the stage was set for a groundbreaking 2018 ruling by an Illinois federal court finding that the landlord could be held liable for harassment. The FHA ban on sex discrimination requires that when landlords become aware that a tenant is suffering LGBT-based harassment at the hands of another tenant, they must step in to protect the victim, the court reasoned [Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018)].

Coach Source:

Anne Sadovsky, CAM, CAPS: Fair Housing Consultant and Certified Speaking Professional, Dallas, TX; (866) 905-9300; anne@annesadovsky.com.