Fair Housing Act Prohibits LGBTQ Discrimination

Whitman Legal Solutions, LLC

Whitman Legal Solutions, LLC

It takes perseverance and grit to become an opera singer. Besides having a phenomenal voice that projects, opera singers must have solid musical training and learn to sing in several languages. For every role, there are dozens of qualified singers. A cold or allergies can derail an audition, and singers can suffer overuse injuries to their vocal cords.

On top of that, transgender opera singers face additional challenges. Despite the belief that the arts are more accepting of LGBTQ individuals, that isn’t always the case with opera roles.

Last year, California radio station’s KQED’s The California Report Magazine podcast discussed some of these challenges. Transgender singers may have to navigate vocal range changes. Trans male singers who take testosterone may experience lowering their vocal range due to a thickening of the vocal folds. But that can require a period of adjustment for the singer.

The situation is even more challenging for trans female singers. Taking female hormones doesn’t change the trans female singers’ vocal ranges. Trans female singers may need vocal surgery, which is unpredictable and can cause voice damage that ends the singer’s career. That’s why opera singer Lucia Lucas continued singing in her baritone voice range after her transition.

These challenges don’t even factor in the impact employment discrimination might have on a transgender singer’s career. Singers who have built a reputation as their gender assigned at birth may not be offered roles after they transition. And since casting decisions are subjective, it’s difficult to prove discrimination. Earlier this year, in Bostock v. Clayton County, Georgia, the U.S. Supreme Court held that discrimination against LGBTQ individuals violates Title VII of the Civil Rights Act.

Bostock is a landmark decision that will affect employers and employees nationwide. But Bostock also affects housing laws. This article discusses how Bostock changes the definition of housing discrimination claims under the Fair Housing Act (FHA).

Bostock v. Clayton County, Georgia

Bostock decided the appeals of several U.S. Circuit Court cases. One case involving Gerald Bostock, who was fired by Clayton County, Georgia, for conduct unbecoming a county employee after he joined a gay recreational softball league. Although the Eleventh Circuit affirmed Bostock’s firing, the Second Circuit allowed a similar case involving a gay man to proceed.

The third appealed case involved Aimee Stephens, who worked as a man for a funeral home for many years while living as a woman during her private life. After she informed her employer that she would both live and work full-time as a woman, she was fired.

The Supreme Court held that discrimination against LGBTQ individuals is inherently discrimination based upon that individual’s sex. Justice Gorsuch, who wrote the Bostock decision, provided examples:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Housing Discrimination Based Upon Sexual Orientation or Gender Identity

Since 1974, the FHA has prohibited housing discrimination because of an individual’s sex. Even then, the FHA wasn’t considered to prohibit discrimination based upon sexual orientation or gender identity.

In 2012, the U.S. Department of Housing and Urban Development (HUD) issued its first rule prohibiting discrimination based upon sexual orientation or gender identity. The 2012 rule only applied to eligibility for HUD mortgages and residency at projects subject to HUD financing. In 2016, HUD expanded the prohibition to require HUD-supported operators of single-sex projects to provide services based upon an individual’s gender identity, rather than upon the gender assigned at birth.

The 2012 and 2016 HUD rules didn’t apply to housing that didn’t involve HUD financing or financial support. Some states and local jurisdictions passed laws prohibiting housing discrimination based upon sexual orientation or gender identity. However, in many jurisdictions, such discrimination was not unlawful.

Even though Bostock is an employment discrimination case, it likely also applies to the FHA. Now, no landlord subject to the FHA can legally discriminate against a tenant or prospective tenant based upon their sexual orientation or gender identity.

Twenty-one states also ban housing discrimination based on sexual orientation and gender identity. And two additional states have outlawed housing discrimination based upon sexual orientation but not discrimination based upon gender identity. Many local jurisdictions also ban housing discrimination based on sexual orientation or gender identity.

Scope of the Fair Housing Act

Besides prohibiting refusal to sell or rent residential real estate to an individual based upon their sexual orientation or gender identity, the FHA also prohibits:

  • Setting differing terms or conditions for sale or rent or offering different services or options based upon an individual’s sexual orientation or gender identity.

  • Trying to convince an individual to live (or not to live) somewhere because of their sexual orientation or gender identity.

  • Blockbusting. Although blockbusting usually is thought of as a type of race discrimination, a real estate broker also could unlawfully try to persuade people to sell or move based upon the claim that LGBTQ individuals are moving into a neighborhood or condo building.

  • Claiming that housing is not available when it is.

  • Refusing to provide information about loans or discrimination on the terms of loans based upon an individual’s sexual orientation or gender identity.

  • Refusing to provide or discrimination on the terms of homeowner’s insurance based upon an individual’s sexual orientation or gender identity.

Exceptions to the Fair Housing Act

A few situations are exempt from the FHA. Following are some exceptions which might allow discrimination based upon sexual orientation or gender identity:

Owner-occupied property.

If the owner owns a duplex or four-plex and lives in one unit, that property is excepted from the FHA.

Private clubs.

Private clubs that provide housing to their members are excepted from the FHA, provided they limit access to members and do not offer housing to the public. However, other discrimination laws may prohibit private clubs from denying membership to LGBTQ individuals.

Single-family homes leased or sold without a broker.

If no real estate broker is used, an owner may rent or lease a single-family home without complying with the FHA. This exception is subject to limitations on the number of homes owned, frequency of sales, and advertising limitations.

Religious organizations.

Religious organizations may limit housing to adherents of their religion. This exception doesn’t apply to buildings where the religious organization allows individuals of other religions to reside. And the exemption doesn’t allow religious organizations to exclude individuals who otherwise meet rental requirements because the organization is affiliated with a religion that believes LGBTQ individuals are immoral or that their behavior violates the religion’s tenets.

Lucia Lucas’ U.S. Debut

Even though she was raised in Sacramento during the late 20th century and studied voice at California State University–Sacramento and Chicago College of Performing Arts, Lucia Lucas didn’t make her U.S. debut until 2019. Her “homecoming” was monumental. She sang the title role in Don Giovanni with Tulsa Opera–the first trans woman known to sing a principal opera role in the U.S.

At the time of Lucas’ groundbreaking performance, in Oklahoma and 28 other states a landlord could legally have refused to rent an apartment to her because of her gender identity. Now, less than a year later, no one can legally be denied housing because of their sexual orientation or gender identity.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.

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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