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Biden Administration Bans Anti-LGBTQ+ Discrimination in Housing

The federal government is taking action against anti-LGBTQ+ discrimination in housing.

The U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity issued a memo Thursday “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,” says a HUD press release.

HUD is the first agency to implement President Joe Biden’s executive order directing federal government departments to follow the findings of the Bostock v. Clayton County Supreme Court decision, which held that existing law banning sex discrimination also banned discrimination based on sexual orientation and gender identity. Biden signed the executive order January 20, his first day in office.

The Bostock ruling dealt with employment discrimination, covered by Title VII of the Civil Rights Act of 1964, but HUD’s legal team determined “that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII,” the press release states.

Across the nation, same-sex couples and transgender people “experience demonstrably less favorable treatment than their straight and cisgender counterparts when seeking rental housing,” but the department was limited in its efforts to address such discrimination because of “legal uncertainty” that it was within HUD’s power, the agency notes. Now the uncertainty is removed.

“Housing discrimination on the basis of sexual orientation and gender identity demands urgent enforcement action,” Jeanine M. Worden, acting assistant secretary of the Office of Fair Housing and Equal Opportunity, said in the release. “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.”

“Enforcing the Fair Housing Act to combat housing discrimination based on sexual orientation and gender identity isn’t just the right thing to do — it’s the correct reading of the law after Bostock,” added Damon Y. Smith, principal deputy general counsel. “We are simply saying that the same discrimination that the Supreme Court has said is illegal in the workplace is also illegal in the housing market.” HUD will investigate complaints of such discrimination going back to January 20, 2020, a year before Biden signed the executive order.

HUD’s action reverses the policy of the department under Donald Trump’s administration, which “not only eroded fair housing protections for transgender people and other groups, but … rarely enforced existing law,” as The Washington Post notes. Among other things, HUD, under Secretary Ben Carson, proposed letting federally funded homeless shelters turn away transgender people or force them to be housed according to the gender they were assigned at birth. It was reported that in a private meeting, Carson worried aloud that “big, hairy men” would be housed in women’s shelters. He claimed to be concerned about men pretending to be trans to gain access to these shelters, repeating an excuse often used for anti-trans discrimination. Biden has nominated U.S. Rep. Marcia Fudge of Ohio, a Democrat and LGBTQ+ ally, to succeed Carson.

LGBTQ+ activists welcomed HUD’s move but also stressed the continued need for the Equality Act, which would write these antidiscrimination provisions into the Fair Housing Act and civil rights laws governing other aspects of life — and assure that the action could not be undone by a future president’s executive order.

“The Trevor Project commends the Biden administration for its continued efforts to protect LGBTQ young people from discrimination. No one should be denied shelter because of their sexual orientation or gender identity,” said a statement issued by Amit Paley, CEO and executive director of the Trevor Project. “Research clearly demonstrates that LGBTQ-based discrimination is linked to increased risk for suicide. That’s why Congress should supplement these recent executive actions with the passage of the Equality Act to prohibit discrimination in housing and all other areas of society. Furthermore, we must expand programs and protections for LGBTQ young people who experience housing instability, especially those who are transgender or nonbinary, people of color, and/or living with HIV/AIDS.”

“Today, thanks to the Department of Housing and Urban Development and President Biden, LGBTQ people can rest assured that if they are denied housing in an emergency or refused rental of an apartment because of their sexual orientation or gender identity they will have recourse under federal law,” Human Rights Campaign President Alphonso David said in a press release. “This announcement implementing the Supreme Court’s Bostock ruling and applying it to the Fair Housing Act will make a huge impact on the lives of LGBTQ people, particularly transgender people and LGBTQ people of color who face disproportionate rates of discrimination. From day one, the Biden administration has made unprecedented and immediate changes to the lives of the 11 million LGBTQ people across the country and we look forward to continuing our work together with the president and his administration moving forward.”

“Lambda Legal applauds this step by the Biden administration to make the promise of equal housing opportunity real for LGBTQ people across the country,” said a statement from Karen Loewy, senior counsel and senior strategist. “As our housing work has demonstrated and the Bostock decision confirmed, the harassment and discrimination that LGBTQ people face in housing are forms of sex discrimination that federal law will not tolerate. These actions by HUD will both prevent future discrimination and ensure that those who have experienced discrimination have a clear avenue for relief.”

“Homelessness and housing insecurity are critical issues for many LGBTQ people – particularly transgender individuals who often face serious bias and barriers to finding safe and secure housing,” added Shannon Minter, legal director at the National Center for Lesbian Rights. “This guidance makes clear that federal law prevents federally funded shelters from turning people away because of their sexual orientation or gender identity, as well as addressing anti-LGBTQ discrimination in all other areas of federal housing law.” 

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