HUD Says LGBTQ Individuals Protected Under Fair Housing Act

Whitman Legal Solutions, LLC

Whitman Legal Solutions, LLC

In the early days of opera, it wasn’t unusual for all roles to be played by males. Roles requiring higher-pitched voices were played by castratos, males castrated before puberty to retain a soprano or contralto vocal range, even though the singer frequently was portrayed as female.

The use of castrato voices was introduced in the 16th century, when women weren’t allowed to perform in church choirs or on stage. Fortunately, the barbaric practice of creating castratos and discrimination against women both were eliminated by the end of the 18th century when women began playing.

The use of males for tenor and bass roles and females for soprano and contralto or mezzo-soprano roles continued through the 20th century. Yet, those roles didn’t always align voice range with gender. For instance, there are several well-known “trouser roles,” such as the role of Cherubino in Mozart’s Marriage of Figaro, where women perform a male-gendered role written for a high vocal range. Now, some opera singers have questioned whether it’s appropriate to link vocal range to gender at all when assigning roles.

One opera singer who questions the need to tie gender to vocal range is Aiden Feltkamp, who has written several articles on gender identity and voice types for New Music USA. Feltkamp, a librettist and educator as well as a singer, advocates updating vocal classifications based upon range, flexibility, and timbre without setting gender expectations for any vocal classification.

Last year, in Fair Housing Act Prohibits LGBTQ Discrimination, I discussed a related topic: challenges transgender opera singers face in navigating vocal ranges during and after their transition. That article discussed the U.S. Supreme Court’s holding in Bostock v. Clayton County, Georgia that discrimination against LGBTQ individuals violates Title VII of the Civil Rights Act. At the time, I predicted that Bostock would affect housing discrimination laws, including the Fair Housing Act (FHA).

On February 11, 2021, the U.S. Department of Housing and Urban Development (HUD) issued a memorandum (HUD Memorandum) interpreting the FHA as prohibiting discrimination based on sexual orientation or gender identity. This article discusses HUD’s statement and provides landlords with best practices for complying with these FHA requirements.

Previous Federal Law Banning Housing Discrimination Against LGBTQ Individuals

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 HUD issued its first rule prohibiting discrimination based upon sexual orientation or gender identity, but that rule only applied to eligibility for HUD mortgages and residency at projects subject to HUD financing. In 2016, HUD required HUD-supported operators of single-sex projects to provide services based upon an individual’s gender identity. However, those HUD rules didn’t apply to housing that didn’t involve HUD financing or financial support.

However, twenty-one states and the District of Columbia banned housing discrimination based upon sexual orientation or gender identity. Wisconsin and New Hampshire banned discrimination based upon sexual orientation but not gender identity. In the remaining states, many cities and counties had laws prohibiting discrimination against sexual orientation or both sexual orientation and gender identity.

How the New HUD Memorandum Expands Federal Housing Discrimination Law

The HUD Memorandum is based upon President Biden’s January 20, 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (Executive Order). Following Bostock’s reasoning, the Executive Order stated the Biden administration’s intent to interpret federal laws banning sex discrimination as prohibiting discrimination based upon gender identity or sexual orientation.

The HUD Memorandum requires HUD’s Office of Fair Housing and Equal Opportunity (FHEO) to treat complaints of housing discrimination based upon sexual orientation and gender identity the same as any other fair housing complaint:

“Effective immediately, FHEO shall accept for filing and investigate all complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, that meet other jurisdictional requirements. Where reasonable cause exists to believe that discrimination because of sexual orientation or gender identity has occurred, FHEO will refer a determination of cause for charge by HUD’s Office of General Counsel. Moreover, if discrimination because of gender identity or sexual orientation occurs in conjunction with discrimination because of another protected characteristic, all such bases shall be included within the complaint, investigated, and charged where reasonable cause exists. Similarly, FHEO shall conduct all other activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination to include discrimination because of sexual orientation and gender identity.”

The HUD Memorandum also applies to public and private entities with HUD Fair Housing Initiative Program (FHIP) grants to prevent or eliminate housing discrimination. FHIP grant recipients now must interpret the FHA as prohibiting discrimination based upon sexual orientation or gender identity.

What’s Covered Under 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 now 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 insurance or discriminating on the terms of homeowner’s insurance based upon an individual’s sexual orientation or gender identity.

Exceptions to the Fair Housing Act

Despite its broad scope, the FHA doesn’t apply to all U.S. housing. So, LGBTQ individuals won’t be protected from discrimination in housing that falls under exceptions to the FHA.

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.33

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.

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 an LGBTQ individual who adheres to a particular religion cannot be denied access to that religion’s sponsored housing available to a comparably-situated non-LGBTQ adherent.

How the HUD Memorandum Affects States

The HUD Memorandum doesn’t change state laws. However, it could affect the housing discrimination complaint process in the states that haven’t passed laws prohibiting housing discrimination based upon sexual orientation or gender identity.

HUD’s Fair Housing Assistance Program (FHAP) pays state agencies to process fair housing claims. This can be beneficial both to the states by (funding their fair housing programs) and complainants (who can file both state and federal complaints at the same time). But FHAP is only available to states whose laws are certified as “substantially equivalent.”

Until now, states could participate in FHAP even if their fair housing laws didn’t protect LGBTQ individuals. Now, those states likely will need to change the laws or modify the interpretation of their existing fair housing laws in light of Bostock to remain eligible for FHAP:

“In order for FHAP agencies’ laws to remain substantially equivalent, they must be administered consistent with Bostock. To be consistent with Bostock, the state or local law either must explicitly prohibit discrimination because of gender identity and sexual orientation or must include prohibitions on sex discrimination that are interpreted and applied to include discrimination because of gender identity and sexual orientation. HUD will provide further instruction and technical assistance to FHAP agencies on the implementation of Bostock.”

In most states, this should result in new state laws (or new interpretations of existing state laws) prohibiting housing discrimination based upon 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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