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Members of the LGBTQ+ Community:
Learn more about your housing rights!
The experience of a member of the LGBTQ+ community with sexual orientation or gender identity housing discrimination may be covered by the Fair Housing Act. Know your rights.
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The federal Fair Housing Act prohibits housing discrimination based on race, color, national origin, religion, sex, disability, and familial status (i.e., presence of children in the household).
The Fair Housing Act does not specifically include sexual orientation and gender identity as prohibited bases.
However, a lesbian, gay, bisexual, or transgender (LGBT) person’s experience with sexual orientation or gender identity housing discrimination may still be covered by the Fair Housing Act. In addition, housing providers that receive HUD funding, have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, may be subject to HUD program regulations intended to ensure equal access of LGBT persons.
Let’s look at a few examples of how Fair Housing laws can provide protection:
Example 1: A property manager refuses to rent an apartment to a prospective tenant who is transgender. If the housing denial is because of the prospective tenant’s non-conformity with gender stereotypes, it may constitute illegal discrimination on the basis of sex under the Fair Housing Act.
Example 2: A gay man is evicted because his landlord believes he will infect other tenants with HIV/AIDS. That situation may constitute illegal disability discrimination under the Fair Housing Act because the man is perceived to have a disability, HIV/AIDS.
Example 3: An underwriter for an FHA insured loan is reviewing an application where two male incomes are being used as the basis for the applicants’ credit worthiness. The underwriter assumes the applicants are a gay couple and, as a result, denies the application despite the applicants’ glowing credentials. This scenario may violate HUD regulations which prohibit FHA-insured lenders from taking actual or perceived sexual orientation into consideration in determining the adequacy of an applicant’s income.
Being a member of the LGBT community renting in NYC may not always be easy.
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Below is a summary of the HUD LGBT Final Rule of 2012:
Through this final rule, HUD implements policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.
This rule follows a January 24, 2011, proposed rule, which noted evidence suggesting that lesbian, gay, bisexual, and transgender (LGBT) individuals and families are being arbitrarily excluded from housing opportunities in the private sector.
Such information was of special concern to HUD, which, as the Nation’s housing agency, has the unique charge to promote the federal goal of providing decent housing and a suitable living environment for all.
It is important not only that HUD ensure that its own programs do not involve discrimination against any individual or family otherwise eligible for HUD-assisted or-insured housing, but that its policies and programs serve as models for an equal housing opportunity.
Fair Housing Act
The Fair Housing Act prohibits housing discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability. A person who identifies as LGBTQ who has experienced (or is about to experience) discrimination under any of these bases may file a complaint with HUD. HUD is committed to investigating violations of the Fair Housing Act against all individuals regardless of their sexual orientation or gender identity.
Here’s a great but lengthy video we found by the HUD (Housing and Urban Development) on understanding and strengthening fair housing for all. If you’re a member of the LGBTQ+ community and are looking to rent an apartment, knowing your rights is important – this video can help.
HUD’s regulations requiring equal access to members of the LGBTQ+ community include the following:
- A general equal access provision that requires housing that is funded by HUD or subject to a mortgage insured by the Federal Housing Administration (FHA) to be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.
- Clarification that the terms “family” and “household” as used in HUD programs include persons, regardless of actual or perceived sexual orientation, gender identity, or marital status.
- Prohibition on owners and operators of HUD-funded housing or housing insured by FHA from asking about an applicant’s or occupant’s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available.
- Prohibition on FHA lenders from taking into account actual or perceived sexual orientation or gender identity in determining the adequacy of a potential borrower’s income.
State and Local Additional Protections
Many state, city, and county laws specifically include sexual orientation and gender identity as prohibited bases, so all licensed real estate agents need to make sure they are informed and compliant with any possible LGBT violations.
If you have a general question or need information about reporting a violation of HUD program regulations or the Fair Housing Act, you can email LGBTFairhousing@hud.gov.
You can use the following resource to see if your state offers protection to additional classes:
Recent HUD Update Regarding Criminal History
On April 4th, 2015, HUD’s Office of General Counsel issued guidance concerning how the Fair Housing Act applies to the use of criminal history by providers or operators of housing and real-estate-related transactions. Specifically, the guidance addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action – such as a refusal to rent or renew a lease – based on an individual’s criminal history.
The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics.
While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.
Policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction. Where a policy or practice excludes individuals with only certain types of convictions, a housing provider will still bear the burden of proving that any discriminatory effect caused by such policy or practice is justified. Such a determination must be made on a case-by-case basis.
Selective use of criminal history as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics violates the Act.
In summary, the use of any policy that excludes persons based upon criminal history may be a violation of the Fair Housing Act. When forming a new policy or reviewing a current policy, it is best to consult legal counsel to avoid being in violation, inadvertently or not, of the Fair Housing Act.
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