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HUD’s Office of Fair Housing and Equal Opportunity (FHEO) prohibition on discrimination based on sexual orientation and gender identity

On February 11, 2021, HUD announced in a memo that the HUD FHEO office will administer and fully enforce the Fair Housing Act to prohibit discrimination because of sexual orientation and gender identity.  This memo was issued to implement Executive Order 13988 on “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” Executive Order 13988 addresses the Supreme Court’s recent landmark decision in Bostock v Clayton County, which held that the prohibitions against sex discrimination in the workplace contained in Title VII of the Civil Rights Act of 1964,  extend to and include discrimination on the basis of sexual orientation and gender identity. Executive Order 13988 requires federal agencies to conduct an assessment on all agency actions covered under federal statutes that prohibit sex discrimination and to fully enforce those statutes by expanding prohibitions on sex discrimination to include discrimination on sexual orientation and gender identity. As a result of HUD’s assessment, HUD’s Office of General Counsel determined that “the Fair Housing Act’s sex discrimination provisions are comparable to those of Title VII of the Civil Rights  and that they likewise prohibit discrimination because of sexual orientation and gender identity.”

History of the Protected Class of Sex

Sex was added as a protected class with the passing of the Housing and Community Development Act of 1974; however, the act did not define “sex” for purposes of the Act.  As a result, the protected class of sex was not viewed or enforced to include discrimination based on gender identity or sexual orientation.  On February 3, 2012, HUD published a final rule referred to as the Equal Access Rule, which requires equal access to HUD programs without regard to a person’s actual or perceived sexual orientation, gender identity, or marital status. While a significant step forward, since the Equal Access Rule only applied to HUD-funded Housing, representing a small percentage of our nation’s housing stock, housing discrimination against the LGBTQIA community still occurs nationwide.

HUD’s Memorandum – Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act

Effective with the publication of the memorandum, FHEO will investigate all complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, that meet other jurisdictional requirements.  Essentially, this means that the federally protected class of “sex” now includes sexual orientation and gender identity.

Implementation by Housing Providers

Creating and Implementing Antidiscrimination Policies

While the actual text of the Fair Housing Act has not been amended to provide or expand the definition of sex, it is recommended that Housing providers update their anti-discrimination policies to specifically stipulate that the protected class of sex includes sexual orientation or gender identity.

Updating Applications and other Housing Forms

In general, questions regarding gender or sex should not be asked on housing applications, as this categorization has no impact on an individual’s ability to meet the terms and conditions of the lease.

Collecting Gender Information For HUD programs

In general, housing providers administering HUD programs must ask about each household member’s sex on a housing application. Further, for some HUD programs, applicants are asked to disclose this information on the HUD sample “Family Summary Sheet” and the HUD sample “Citizenship Declaration” form. While housing providers are required to ask for this information, applicants and tenants are not required to disclose this information.  Currently, the questions regarding sex on the Sample HUD forms are asked in a “fill in the blank” style and does not provide a list of options for an applicant or tenant to select from.  As a result of HUD’s Equal Access Rule, TRACS was updated with the 202d release to allow the gender field to be left blank when completed the HUD Tenant Certification form – 50059, instead of requiring male or female.  Currently,  if someone does not disclose their sex or identifies their sex as something other than Male or Female, the sex field (Section 3 Field 8) on the 50059 should be left blank.  It is unknown if HUD intends to add additional options for this data field in the future.

Educating Employees on the Importance of Non-Discrimination

It is critical that housing providers immediately inform and educate all staff members regarding this change in enforcement of the act, so that staff members know how to answer questions regarding gender properly, and most importantly,  to ensure that staff members do not violate the rights of an applicant or tenant.

Vice President of Training and Compliance Policy