HUD Announces That It Will Enforce Fair Housing Act to Prohibit Discrimination on the Basis of Sexual Orientation and Gender Identity

On February 11, 2021, the U.S. Department of Housing and Urban Development (HUD) issued a memorandum stating that it interprets the Fair Housing Act’s prohibition against discrimination “on the basis of sex” as including sexual orientation and gender identity.  The decision comes as part of HUD’s obligation imposed by President Biden’s Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, which directed federal agencies to determine if there were steps that could be taken to prevent this type of discrimination. 

HUD’s decision was expected after the U.S. Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act, which prohibits discrimination on the basis of sex in employment, also prohibits discrimination on the basis of sexual orientation and gender identity.  Title VII’s language prohibiting discrimination “on the basis of sex” is identical to the language in the Fair Housing Act that prohibits discrimination in housing “on the basis of sex.”  Indeed, the Supreme Court referred to that fact in the Bostock decision and stated that its decision will likely have the same impact on housing discrimination. 

The Bostock decision has already been applied to a Fair Housing Act claim in at least one case.  In Walsh v. Friendship Village of South County (E.D. Mo.), a same-sex couple alleged a retirement community denied them housing on the basis of their sexual orientation in violation of the Fair Housing Act.  In January 2019, the court dismissed the claim holding that sexual orientation was not protected under the Fair Housing Act.  The couple appealed the decision.  While the appeal was pending the Supreme Court issued the Bostock decision and on July 2, 2020, the Eight Circuit Court of Appeals vacated the district court’s order and remanded the case for further proceedings in light of the Bostock decision.  The parties subsequently settled the case.  However, this is a clear sign that courts will apply Bostock and apply the Fair Housing Act prohibition of discrimination on the basis of sex to include sexual orientation and gender identity.

HUD issued several immediate directives in the sexual orientation/gender identity memorandum including the following: 

• HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds such discrimination occurred.
• HUD will conduct all activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation and gender identity.
• State and local jurisdictions funded by HUD’s Fair Housing Assistance Program (FHAP) that enforce the Fair Housing Act through their HUD-certified substantially equivalent laws will be required to administer those laws to prohibit discrimination because of gender identity and sexual orientation.
• Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program (FHIP) must carry out their funded activities to also prevent and combat discrimination because of sexual orientation and gender identity.
• FHEO Regional Offices, FHAP agencies, and FHIP grantees are instructed to review, within 30 days, all records of allegations (inquiries, complaints, phone logs, etc.) received since January 20, 2021, and notify persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional for filing under this memorandum.

In light of HUD’s memorandum and Bostock, property owners and managers should evaluate their current fair housing policies and practices to prohibit discrimination on the basis of sexual orientation and gender identity.  Housing providers should also ensure sexual harassment policies clearly prohibit harassment on the basis of sexual orientation and gender identity.  Finally, any fair housing training curriculum should include instruction on sexual orientation and gender identity discrimination and how to ensure this type of discrimination does not occur in housing.