Special Issue: Legal Update on Sexual Orientation, Gender Identity, and Same-Sex Marriage

In this special issue of Fair Housing Coach, we’ll review recent legal developments related to sexual orientation and gender identity—and same-sex marriage. Although federal law doesn’t recognize same-sex marriage, or ban housing discrimination based on sexual orientation or gender identity in conventional housing communities, there have been many recent developments involving both issues in the political, regulatory, legislative, and judicial arenas.

On the housing front, HUD has been active in efforts to stamp out discrimination based on sexual orientation and gender identity. Efforts to add sexual orientation and gender identity to the Fair Housing Act (FHA) have stalled, but HUD acted on its own authority earlier this year to adopt rules banning discrimination based on sexual orientation and gender identity in public and federally assisted housing.

Meanwhile, HUD is enforcing a policy to closely examine complaints of sexual orientation/gender identity discrimination to determine whether they can be prosecuted under current federal law banning sex or disability discrimination. When that’s not possible, HUD pledged to forward complaints to state or local officials in the growing number of jurisdictions that ban housing discrimination against lesbian, gay, bisexual, or transgender (LGBT) individuals.

In a related—but separate—issue, recent months have seen much activity in the battle over same-sex marriage—most notably, the president’s declaration of support for same-sex marriage. Currently, only a handful of states officially recognize marriage between members of the same sex. Several deny marital status but formally recognize committed same-sex relationships in the form of civil unions or domestic partnerships.

Federal law bans recognition of same-sex marriage—and most states have followed suit. Although the federal law doesn’t ban states from allowing same-sex couples to marry, its effect is to deny same-sex spouses any federal benefits based on marriage, such as the right of surviving spouses to federal retirement benefits, which are available to opposite-sex spouses.

Because of that discrepancy, the federal law has come under attack—with several courts recently declaring the federal law unconstitutional in the last few months. Given the uncertainty, legal observers expect the matter won’t be settled until it’s heard by the U.S. Supreme Court.

In this issue, we’re going to review these and other significant developments—and explain what they may mean for multifamily housing communities. We’ll also give you a chart, Laws Banning LGBT Discrimination and Same-Sex Marriage Laws by State, so you can see where your state stands on the issues. Of course, much depends on the results of this fall’s election, but in the meantime, we’re offering this update so you’ll understand current requirements—and be prepared for future developments related to LGBT protections and same-sex marriage laws.

Coach’s Tip: This issue focuses on the implications of recent events affecting LGBT rights and same-sex marriage. For more information about the basics about protecting your community from discrimination claims based on sexual orientation or gender identity, take a look at the May 2009 issue of Fair Housing Coach, “How to Prevent Housing Discrimination Based on Sexual Orientation,” available in our online Archive.

UPDATE ON FAIR HOUSING PROTECTION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY

Fighting LGBT Discrimination on the National Level

Federal officials—from the president to HUD enforcement officials—have stepped up efforts to combat housing discrimination against LGBT individuals and families.

In June 2012, President Obama issued a presidential proclamation in honor of Lesbian, Gay, Bisexual, and Transgender Pride Month in which he emphasized his administration’s work to broaden opportunity, advance equality, and level the playing field for LGBT people and communities. Among other initiatives, the president pointed to new rules to ban housing discrimination based on sexual orientation and gender identity.

The new HUD regulation, “Equal Access to Housing in HUD Programs—Regardless of Sexual Orientation or Gender Identity,” is intended to ensure that HUD’s core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.

The new rules, which became effective March 5, 2012, ban discrimination by the owners and operators of HUD-assisted or -insured housing based on actual or perceived sexual orientation, gender identity, or marital status. Except in limited circumstances, HUD-funded and -insured housing providers may not ask about sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available. The rules also make it clear that HUD’s core programs are open to LGBT families, regardless of actual or perceived sexual orientation, gender identity, or marital status.

The rules include definitions of “sexual orientation” and “gender identity” as currently used in the context of federal law. Borrowing from federal employment guidelines, the rules define “sexual orientation” as “homosexuality, heterosexuality, or bisexuality.” The definition of “gender identity” as “actual or perceived gender-related characteristics” comes from federal hate crimes legislation.

Although most HUD rental housing programs already interpret the term “family” broadly, the new rules clarify 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. As of June 2012, HUD was in the process of rolling out guidance on the new rule to housing providers and HUD staff.

In addition, HUD will soon release the first set of results in a national study of LGBT housing discrimination, according to a June 2012 HUD blog post by Samuel Pearson-Moore, from HUD’s Office of General Counsel.

Meanwhile, high-ranking HUD officials have actively promoted the new regulation and other initiatives to ban housing discrimination against members of the LGBT community. Notably, Secretary Shaun Donovan became the first-ever sitting Cabinet Secretary to address the National Center for Transgender Equality to discuss HUD’s work to advance equality for transgender people. In addition, Donovan was the keynote speaker at the National Gay and Lesbian Task Force’s annual Creating Change conference, where he announced HUD's new regulation.

Meanwhile, Assistant Secretary for Fair Housing & Equal Opportunity John Trasviña has participated in HUD’s Live Free fair housing education and outreach campaign, which targets print and social media like Facebook, with videos, podcasts, and ads that address discrimination due to gender stereotypes and explain how to report it. In addition, HUD’s Office of Fair Housing has created a dedicated Web site, phone number, and email address to receive and address complaints under the new “Equal Access” rule.

HUD also hosted the first-ever national LGBT Elder Housing Summit, which brought government officials, activists, and academics together to discuss a broad range of issues affecting LGBT seniors, including housing, discrimination in long-term care facilities, and how to ensure LGBT elder housing efforts are inclusive. In addition, in Detroit, a HUD official addressed participants at the first-ever White House LGBT Conference on Housing and Homelessness in partnership with an organization dedicated to serving runaway, homeless, and at-risk LGBT youth.

LGBT Claims Under Current Federal Fair Housing Law

Although the new HUD regulation applies only to federally assisted or insured housing communities, even conventional housing providers could face a federal investigation for discrimination complaints by LGBT individuals under certain circumstances.

A claim could be raised under the disability discrimination provisions, according to HUD. For example, a gay man who’s evicted because his landlord believes he will infect other residents with HIV/AIDS could file a complaint for disability discrimination under the FHA because the man is perceived to have a disability, HIV/AIDS.

More broadly, HUD says that a claim involving discrimination based on sexual orientation or gender identity could be pursued under the FHA’s ban on sex discrimination. Although the ban on sex discrimination doesn’t apply to claims based on sexual orientation and gender identity per se, HUD says it could apply to claims involving sexual stereotyping—that is, discrimination against an individual whose personal characteristics don’t conform to gender stereotypes. For example, HUD says that it could pursue a claim by a female prospect who alleges that she was denied housing because she wears masculine clothes and engages in other physical expressions that are stereotypically male.

Such claims have support in the cases involving employment discrimination, to which courts often turn when deciding housing discrimination cases. Federal employment law, like fair housing law, doesn’t cover discrimination claims based on sexual orientation or transgender status as a form of sex discrimination, but courts have been more open to employment discrimination claims based on sexual stereotyping or gender nonconformity—that is, when the discrimination is motivated because the perpetrator believed the victim failed to act in the way expected of a man or woman.

In a landmark April 2012 ruling, the Equal Employment Opportunity Commission (EEOC) recognized that a transgender woman could pursue a discrimination complaint based on gender identity, change of sex, and/or transgender status under Title VII, the federal law that prohibits employment discrimination.

The case was filed by a veteran Phoenix police detective who decided to move to California for family reasons; at the time, the detective was still known as a male, having not yet made the transition to being a female. The complaint alleged that the detective had applied for—and was all but guaranteed—a job as a ballistics technician at a federal law enforcement agency’s laboratory in California. After disclosing her gender transition, however, the detective claimed that she was told that funding for the position had been suddenly cut; she said that someone else was then hired for the job.

The EEOC ruled that the detective could pursue a sex discrimination claim under federal employment law. According to the EEOC, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII” [Macy v. Holder, EEOC, California, April 2012].

The EEOC’s decision follows a clear trend by federal courts in recent years holding that transgender people are protected by Title VII’s prohibition against sex discrimination, according to the Transgender Law Center, which filed the complaint on the detective’s behalf.

LGBT Claims Under Current State and Local Law

In addition to complying with federal requirements, communities must adhere to a sizable number of state, county, and municipal laws banning discrimination based on sexual orientation and gender identity.

Since the Coach last covered the topic in May 2009, several states have added sexual orientation and gender identity to their fair housing laws—or added gender identity to existing laws covering sexual orientation. As of June 2012, 21 states and the District of Columbia ban housing discrimination based on sexual orientation, according the Human Rights Campaign, an advocacy group. All but five also prohibit discrimination based on gender identity.

Most recently, Massachusetts became the 16th state to treat transgender citizens as a protected class when it added gender identity to the existing laws banning discrimination based on sexual orientation. Effective July 1, 2012, the law protects transgender individuals from discrimination in housing, education, employment, and credit; it also provides additional civil rights and protections from hate crimes.

A similar measure was passed by the New York State Assembly and was pending in the Senate as of June 2012.

Meanwhile, some states are teaming up with HUD to eliminate discrimination based on sexual orientation and gender identity. In June 2012, for example, the Illinois Department of Human Rights and HUD issued a joint letter to emphasize their commitment to protect LGBT rights under federal and state law.

The letter, issued in honor of Gay Pride Month, noted that HUD now uses its authority under federal law to accept housing complaints related to gender identity as sex discrimination. The letter also stated that HUD is already pursuing enforcement actions based on complaints about violations of its new regulation barring HUD-funded and HUD-insured housing providers from basing eligibility determinations on actual or perceived gender identity, sexual orientation, or marital status.

Additionally, the letter emphasized that HUD no longer sends its funds to entities that violate state and local laws, such as the Illinois Human Rights Act, that specifically prohibit sexual orientation, gender identity, and marital status housing discrimination. Since 2006, when the Illinois law was adopted, the human rights department has investigated numerous complaints of housing discrimination based on sexual orientation or gender identity and has sought and obtained remedies for victims of discrimination. The letter offered some examples of complaints:

• A gay couple applied for a one-bedroom apartment, but the owner refused to rent to them once she learned they were both men;
• A married couple was denied rental based on the transgender status of the wife; and
• A lesbian couple alleged that after renting to them, the property manager refused to make needed repairs and made disparaging comments about their sexual orientation.

Even when state law doesn’t protect sexual orientation or gender identity, many housing communities are subject to county and municipal laws that ban housing discrimination based on sexual orientation, most of which also cover gender identity.

As of June 2012, 156 cities and counties have laws that ban LGBT discrimination, according to the National Gay and Lesbian Task Force. More than 100 affect communities in 22 states that haven’t adopted a state-wide ban. In some states, the laws were adopted by a single large city—for example, Atlanta and New Orleans. But in states such as Florida, Michigan, Ohio, and Pennsylvania, a large number of county or municipal laws ban discrimination based on sexual orientation and gender identity. All told, 45 percent of the U.S. population—or nearly 140 million Americans—are covered by transgender inclusive nondiscrimination laws, the task force reports.

Coach’s Tip: A map showing statewide housing laws and policies as of June 2012 is available on the Human Rights Campaign’s Web site at http://www.hrc.org/files/assets/resources/Housing_Laws_and_Policies.pdf. A list of city and county laws banning LGBT discrimination as of June 2012 is available for download on the National Gay and Lesbian Task Force’s Web site at http://www.thetaskforce.org/reports_and_research/all_jurisdictions.

The bottom line on LGBT discrimination: Federally funded and insured housing providers are barred from denying housing based on an applicant’s actual or perceived sexual orientation, gender identity, or marital status. Private communities in 21 states and the District of Columbia must comply with statewide bans on discrimination based on sexual orientation. In all but five, communities are also subject to state laws protecting gender identity, although any community could face a HUD investigation for fair housing complaints related to gender identity under the FHA’s ban on sex discrimination. Housing providers in 22 states that don’t have a statewide ban are subject to applicable local laws prohibiting discrimination against LGBT individuals.

UPDATE ON SAME-SEX MARRIAGE

Despite what appears to be a growing consensus to ban housing discrimination based on sexual orientation, marriage equality for same-sex couples has been met with strong opposition. Some states formally recognize committed same-sex relationships, such as civil unions or domestic partnerships, but advocates argue that denying them the right to marriage effectively relegates them to second-class status.

Federal law currently bans recognition of same-sex marriage, as does the law in a large majority of states. The battle rages on, but a number of recent developments may signal change on the horizon.

In early May 2012, President Obama made news when he publically declared support for same-sex marriage during a television interview. Following up on those remarks, the president reiterated his personal support for marriage equality for same-sex couples in his June 2012 presidential proclamation in honor of Lesbian, Gay, Bisexual, and Transgender Pride Month.

In mid-May, the National Association for the Advancement of Colored People voted to support marriage equality as a continuation of its historic commitment to equal protection under the law. “Civil marriage is a civil right and a matter of civil law,” NAACP President and CEO Benjamin Todd Jealous said in a written statement. “The NAACP’s support for marriage equality is deeply rooted in the Fourteenth Amendment of the United States Constitution and equal protection of all people.”

Nevertheless, there’s strong resistance to recognizing same-sex marriage in states across the country. Only a handful of states have legalized same-sex marriage, some by statute and some by court rulings. Many more states have adopted legislation or passed constitutional amendments to ban same-sex marriage.

In May, North Carolina became the 39th state to ban same-sex marriage when voters approved a constitutional amendment to designate marriage between one man and one woman as the only domestic legal union valid or recognized in the state.

Same-sex marriage will be on the ballot in four states this fall. In Minnesota, voters will consider a constitutional amendment to ban same-sex marriage. In Washington and Maryland, new laws allowing same-sex marriage won’t go into effect, pending the results of a public referendum in both states this fall. And in Maine, where legislation to legalize same-sex marriage was repealed by a 2009 ballot measure, same-sex marriage has been put back on the ballot—this time by advocates seeking approval of same-sex marriage.

Meanwhile, advocates for same-sex marriage have had a string of wins in the courts over the past few months. In February, a federal appeals court overturned California’s Proposition 8, a voter-approved amendment to the state constitution that eliminated the right of same-sex couples to marry. The court ruled Proposition 8 violated the federal right to equal protection by taking away such an important right previously guaranteed under state law. The court concluded, “the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of members of a disfavored class” [Perry v. Brown, Ninth Circuit Court of Appeals, California, February 2012].

More recently, other courts have struck down a portion of the federal Defense of Marriage Act (DOMA). Passed by a strong majority of both parties and signed by President Clinton in 1996, DOMA has two main provisions. The first, which absolves states of any obligation to recognize same-sex marriages performed in other states, was not at issue in these cases. But the law’s other provision—to define the terms “marriage” and “spouse” for purposes of federal law to apply only to the legal union between one man and one woman—has come under attack.

Several cases are still pending, but in late May and early June, federal courts in California and New York—and most notably, the federal appeals court with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island—ruled this provision violated the federal constitutional right to equal protection.

In essence, the right to equal protection prevents the government from creating classifications that treat people differently without good reason. Unless based on race or other suspect classifications, courts generally uphold the validity of laws that treat people differently as long as the classification is rationally related to a legitimate government interest. The courts said they were required to apply that standard to classifications based on sexual orientation, but that, given the history of discrimination against gay men and lesbian women, evidence of anti-gay bias was relevant in assessing the validity of the challenged provisions in DOMA.

The courts ruled that there was no rational basis for treating legally same-sex married couples differently than opposite-sex spouses under DOMA. Although the law didn’t formally invalidate same-sex marriages in states that permitted them, the courts reasoned that DOMA treated same-sex couples married in those states unfairly by denying them the same benefits of marriage under federal law available to opposite-sex married couples. The law adversely affects legally married same-sex couples under hundreds of federal laws—for example, by preventing legally married same-sex couples from filing joint tax returns, which can reduce tax liability, or allowing the surviving spouse of same-sex marriage to collect Social Security survivor benefits.

Denying those benefits to same-sex married couples didn’t further any of the law’s stated goals, such as preserving the institution of traditional marriage. The California court said that the preservation of marriage as an institution that excludes gay men and lesbians for the sake of tradition was not a legitimate government interest [Dragovich v. U.S. Department of the Treasury, California, May 2012].

Nor did the law preserve the link between marriage and child-rearing, according to the courts. The New York court acknowledged that promoting family values and responsible child-rearing were legitimate government goals, but it found no logical connection between DOMA and those goals. The law didn’t have any impact on heterosexual couples at all—it didn’t deter them from having children outside of marriage or create incentives for pregnant couples to get married [Windsor v. United States, New York, June 2012].

In varying degrees, the courts also considered evidence of anti-gay bias in DOMA’s legislative history. For example, the appeals court reasoned that one of DOMA’s stated goals, moral disapproval of homosexuality, couldn’t justify legislation discriminating on that basis [Commonwealth of Massachusetts v. Office of Personnel Management, First Circuit Court of Appeals, May 2012].

It appears that the same-sex marriage issue is headed for the U.S. Supreme Court. In June, the federal court in California postponed enforcement of its ruling on Proposition 8, pending appeal to the nation’s highest court. Likewise, the federal appeals court said that a Supreme Court review of its decision on DOMA was “highly likely,” and delayed its ruling from taking effect, pending appeal.

The bottom line on same-sex marriage: Under HUD's new regulation ensuring equal access to housing to LGBT families, regardless of actual or perceived sexual orientation, gender identity, or marital status, federally funded and insured housing providers may not deny housing to same-sex married couples. In most states, same-sex marriage is banned by constitutional amendment; whether the tide will turn depends on the results of November’s elections. And although recent court rulings have called the federal law on same-sex marriage into question, the issue will remain unsettled until put to rest by the Supreme Court.