Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) on January 20 announced proposed new regulations intended to ban discrimination on the basis of sexual orientation or gender identity in its core housing programs—programs that impact 4.4 million units of housing in the country.

The proposed new rule would:

• Clarify that families who are otherwise eligible for HUD programs may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship.
• Prohibit owners and operators of HUD-assisted or HUD-financed housing from inquiring about applicants’ sexual orientation or gender identity.
• Prevent lenders from using sexual orientation or gender identity of an applicant as a basis to determine eligibility for Federal Housing Administration (FHA) mortgages. FHA mortgages represent one-third of all new mortgages in the country.

The first two policies above would apply to HUD’s rental assistance and home ownership programs, including FHA mortgage insurance programs, community development programs, and public and assisted housing programs.

In total, there are currently 4.4 million HUD-funded units of housing in the U.S., said a department spokesperson, including public housing, housing subsidized by the Housing Choice Voucher Program (Section 8 housing), and multi-family housing assisted by HUD funding.

HUD Secretary Shaun Donovan called the move “a fundamental issue of fairness” and said, in a press briefing, that he wants HUD to be a “leader” in the fight for LGBT equality, as it has been in other civil rights battles.

Last October, HUD announced its intent to institute the new rule as part of a series of measures to address housing discrimination against LGBT people.

HUD also announced last July a clarification of existing policy, stating that, although the Fair Housing Act—a pivotal civil rights act that prohibits discrimination based on race, color, religion, national origin, sex, disability, and familial status—does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover them in other ways. For example, gender-identity discrimination may be seen as sex discrimination.

HUD has also instructed staff to inform individuals about state and local LGBT protections that may apply to them. And HUD has told its grant applicants—who seek a total of $3.25 billion in federal funding—they must comply with such state and local laws, where they exist.

There are currently no explicit federal protections that ban housing discrimination based on sexual orientation or gender identity. Twenty states plus the District of Columbia have housing protections specific to sexual orientation, and 13 states plus the District have protections specific to gender identity. Approximately 150 cities, towns, and counties have LGBT protections as well, according to HUD.

No national study has quantified how many LGBT people have faced housing discrimination, although several smaller studies and examples have indicated pervasive discrimination, especially against transgender people and LGBT seniors.

HUD is now preparing a national study to fill this gap. The agency collected input for the study last year via a national listening tour and online submissions. A HUD spokesperson said the target date for reporting findings is late 2012.

HUD may additionally include LGBT discrimination in its decennial study of housing discrimination, which has, in the past, looked at racial- and ethnic-based discrimination.

There is also a move in Congress to prohibit discrimination against LGBT people in all housing, not just HUD programs. At the end of the last session of Congress, Reps. Jerrold Nadler (D-N.Y.), John Conyers (D-Mich.), and Edolphus Towns (D-N.Y.) introduced the Housing Opportunities Made Equal (HOME) Act, which would amend the Fair Housing Act to prohibit discrimination on the basis of sexual orientation, gender identity, source of income, or marital status in the sale, rental, financing, or brokerage of housing.

The bill would also expand the Fair Housing Act’s definition of “familial status” to include “anyone standing in loco parentis” to a minor—thus providing protection to same-sex couples and other families where one parent may not be legally recognized.

Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

Ilan Kayatsky, a spokesperson for Nadler, said Nadler hopes to reintroduce the bill in this session of Congress “within the next couple of months.”

Nadler praised HUD’s proposed new rule in a statement, saying that he “[welcomes] the Administration’s more inclusive and expansive view of what defines an American ‘family.’”

With Republican control of the House this session, however, Nadler lost his chairmanship of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The new chair for the renamed Subcommittee on the Constitution is Rep. Trent Franks (R-Ariz.). Trent received a 0 percent score from the Human Rights Campaign for each of the past two Congresses, indicating he never voted in favor of legislation to further LGBT equality.

The proposed HUD rule must go through a 60-day period of public comment, January 24 to March 25. The date of publication for the final rule will depend upon the volume of comments received, but is expected by the end of 2011, said a department spokesperson.

Comments may be submitted via the Federal eRulemaking Portal at regulations.gov, or by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street, SW, Room 10276, Washington, DC 20410-0500.