As we have discussed on numerous occasions in this blog, the Fair Housing Act (“FHA”) prohibits discrimination based on race, color, national origin, religion, gender, disability, and familial status. Acknowledging that the FHA does not explicitly protect against discrimination against persons based on their sexual orientation or gender identity, HUD issued guidance on July 1 to provide its thoughts regarding potential discrimination claims that may arise based on those categories.
For example, HUD will take the position that a landlord who discriminates against a gay man because of the landlord’s belief that the prospective tenant may infect other tenants with HIV likely constitutes actionable discrimination because the landlord is discriminating based on the tenant’s perceived disability as a carrier of AIDS. Likewise, HUD notes taht a landlord who discriminates against a transgendered person based on their non-conformity with gender stereotypes has likely violated the FHA’s ban on gender-based discrimination. The new guidance also identifies states that prohibit sexual orientation and/or gender identity housing discrimination, along with contact information for each state’s human rights enforcement authority. Currently, nineteen states and the District of Columbia outlaw discrimination based on either sexual orientation or gender identity.
The issuance of this guidance is hardly surprising in light of the initiatives announced by HUD in October 2009. The proposed rules intended to (1) clarify that the term “family” as used to describe eligible beneficiaries of HUD’s public housing and Housing Choice Voucher programs to include otherwise eligible lesbian, gay, bisexual or transgender individuals and couples; (2) require grantees and those who participate in HUD’s programs to comply with local and state non-discrimination laws that cover sexual orientation or gender identity; and (3) specify that any FHA-insured mortgage loan must be based on the credit-worthiness of a borrower and not on unrelated factors or characteristics such as sexual orientation or gender identity.
The bottom line is that even though sexual orientation and gender identity are not included in the FHA, many states include these as protected classes. And as the HUD guidance makes clear, the department will attempt to use existing law to “fit” perceived discrimination against members of those classes.
Just A Thought.