HUD PIH issues Equal Access Rule implementation guidance

by Ballard Spahr LLP
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HUD’s Office of Public and Indian Housing (PIH) recently issued PIH 2014-20 (PIH Notice) providing guidance to public housing authorities (PHAs), PHA affiliates and instrumentalities, mixed-finance owners and owners of Section 8-assisted properties regarding the implementation of the final rule entitled Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity (the Equal Access Rule). The PIH Notice confirms the Equal Access Rule also applies to PHAs who are Moving to Work agencies or participating in the Rental Assistance Demonstration program.

Most PHAs and owners are already likely complying with the Equal Access Rule, however, the PIH Notice describes steps PHAs must take to implement the Equal Access Rule, including updating its Annual Plan, Section 8 Administrative Plan and Public Housing Tenant Selection Policies. Definitions used in those materials - specifically the definition of “family” – must be consistent with the Equal Access Rule. In particular, a PHA or owner cannot refuse to consider an unmarried and/or same-sex couple as a family for purposes of admissions or modifications to household composition, nor can gender identity be considered in connection with the determination of what constitutes a family.

Given that the Equal Access Rule requires that housing be made available without regard to actual or perceived sexual orientation, gender identity or marital status, PIH advises that PHAs or owners of PHA-assisted properties may not inquire about an applicant’s or participant’s sexual orientation or gender identity when making housing available, although individuals may voluntarily self-identify their gender identity or sexual orientation. PHAs and owners are prohibited from making decisions, taking actions, or refusing to take actions based on an applicant’s or resident’s actual or perceived sexual orientation or gender identity. Also, a PHA may inquire about an applicant’s or participant’s sex in certain circumstances (e.g., to determine the number of bedrooms for which the household is eligible).

PIH explains that violations of the Equal Access Rule can result in sanctions or corrective actions. The PIH Notice also describes certain scenarios in which a violation of the Equal Access Rule may occur as well as ways in which the Fair Housing Act may be implicated in violations of the Equal Access Rule. Keep in mind that many local or state fair housing law already directly prohibit discrimination based on sexual orientation or gender identity, thus violations of the Equal Access Rule may also violate those laws as well.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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