HUD Will Enforce Fair Housing Act on Basis of Sexual Orientation, Gender Identity

The U.S. Department of Housing and Urban Development (HUD) announced on Thursday that it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity, in guidance which applies uniformly to all FHA programs.

This is a notable change in posture on the part of HUD when compared with the posture under the previous administration, according to reporting at Politico.

The notice announced Thursday applies to all complaints submitted to HUD on or after January 20, 2020 — one year prior to the inauguration of President Joe Biden.

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“HUD’s Office of Fair Housing and Equal Opportunity (FHEO) issued a memorandum stating that HUD interprets the Fair Housing Act to bar discrimination on the basis of sexual orientation and gender identity and directing HUD offices and recipients of HUD funds to enforce the Act accordingly,” the announcement from the Department said.

The new memorandum is HUD’s effort to implement an executive order signed by President Biden on his first day in office, which aims to combat discrimination on the basis of gender identity and/or sexual orientation across the entirety of the federal government.

“Housing discrimination on the basis of sexual orientation and gender identity demands urgent enforcement action,” said Acting Assistant Secretary of FHEO, 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.”

In the announcement, HUD says that “a number of housing discrimination studies” indicate that an inordinate number of Americans face housing discrimination on the basis of their sexual orientation or gender identity, but that the Department has been “constrained in its efforts” to address this specific form of discrimination due to legal uncertainty about whether or not enforcing against such instances was within HUD’s legal reach and authority.

The new memorandum relies on a legal conclusion by HUD that the Fair Housing Act’s sex discrimination provisions are comparable in scope and purpose to those found in Title VII of the Civil Rights Act of 1964, which acts against sex discrimination in places of work. HUD also cites the Bostock v. Clayton County Supreme Court case from 2020 which connected that provision of Title VII to 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,” the announcement reads. “Accordingly, and consistent with President Biden’s Executive Order, HUD will enforce the Fair Housing Act to prevent and combat such discrimination.”

In a 2015 Mortgagee Letter (ML), HUD stressed that reverse mortgage lenders cannot evaluate potential borrowers on the basis of sexual orientation, gender identity or marital status. A final rule published in 2012, which was meant to ensure equal access to housing through HUD, applies to all approved lenders in a Federal Housing Administration (FHA) mortgage insurance program, HUD specified.

After a 2015 Supreme Court case legalized same-sex marriage across the United States, some departments in the federal government had to issue guidance reflecting that decision. However, HUD did not have to make any adjustments, as a spokesperson described that protections on the basis of orientation and gender identity were already “baked into” HUD provisions, including those related to the Home Equity Conversion Mortgage (HECM) program.

“Equal access for all persons is baked into all of HUD’s programs already so there’s no need to extend these important protections in the wake of the Supreme Court’s ruling,” a HUD spokesperson told RMD at the time.

Under the leadership of Former HUD Secretary Ben Carson, investigations into issues of housing discrimination slowed by late 2018, according to reporting at the Washington Post. Carson was wary of using the government’s authority to combat such inequalities, the reporting said.

Carson also faced criticism from his predecessor, Julián Castro, who called on his successor to resign in late 2019 after alleging that comments reportedly made by Carson suggested a lack of concern for transgendered people, which disqualified him from “serving everyone” as HUD Secretary.

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