Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) on July 1 announced new guidance to help LGBT people who encounter discrimination in housing. Like a recent move by the Department of Labor, the HUD announcement is more of a clarification than a new policy—but two LGBT leaders familiar with housing issues say the move is “very significant” and “much needed.”

The new guidance, announced by HUD Secretary Shaun Donovan at HUD’s LGBT Pride Month Celebration, states that, although the Fair Housing Act (FHA) does not explicitly cover sexual orientation- or gender identity-based housing discrimination, such discrimination may be covered by the FHA in other ways. For example, the guidance explains, gender-identity discrimination may be seen as gender discrimination, and discrimination against a gay man because of fear he will spread HIV/AIDS may constitute illegal discrimination on the basis of a perceived disability, HIV/AIDS.

The HUD guidance also instructs staff to inform individuals about state and local LGBT protections that may apply to them. It notes that approximately 20 states, the District of Columbia, and over 60 cities, towns, and counties do specifically prohibit discrimination against LGBT individuals. HUD will retain jurisdiction over complaints filed by LGBT individuals or families as appropriate, but will “jointly investigate or refer matters to those state, district, and local governments with other legal protections.”

Rea Carey, executive director of the National Gay and Lesbian Task Force (NGLTF), said the reforms are “much-needed… especially in the context of this rocky economic climate that has already left so many people fearful of losing the roofs over their heads.”

“LGBT people remain particularly vulnerable in seeking or retaining housing due to widespread bias, discrimination and a lack of housing protections,” said Carey. “Explicitly including LGBT people and our families in housing policies in order to better protect them and ensure fairness marks a proper governmental response and step toward rectifying a long-standing inequity.”

Mara Keisling, executive director of the National Center for Transgender Equality, called HUD’s announcement “very significant.” It should be commonsense that discrimination on the basis of gender identity is prohibited by the FHA’s ban on gender-based discrimination, she said, but it’s not.

A national study by NGLTF and the National Center for Transgender Equality last year found that 11 percent of the more than 6,400 transgender people surveyed had been evicted and 19 percent had become homeless because of their gender identity. (Keisling notes, however, that some of the cases of homelessness could have been from loss of jobs through employment discrimination, not housing discrimination alone.)

Keisling added that, while HUD went as far as it could to clarify protections under existing law, additional legislation is still needed because of the additional clout an explicitly LGBT-inclusive federal nondiscrimination law carries.

The original Fair Housing Act was enacted in 1968 in response to widespread housing discrimination against people of color. At first, it prohibited discrimination based on race, color, religion and national origin. It was later amended to add prohibitions on discrimination based on sex, disability, and familial status. Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

There are currently three bills pending in the House—introduced by Reps. Jerrold Nadler (D-N.Y.), Joe Sestak (D-Penn.), and Edolphus Towns (D-N.Y.)—that would amend the Fair Housing Act specifically to prohibit discrimination in housing on the basis of sexual orientation or gender identity.

Nadler, who chairs the Subcommittee on the Constitution, Civil Rights and Civil Liberties, held a hearing on FHA revisions in March, at which NGLTF’s Carey testified. His LGBT housing nondiscrimination bill has only two co-sponsors, though; Sestak and Towns’ have none, making it seem unlikely that any of the bills will move before the end of this session of Congress in the fall.

Despite a lack of legislative change, however, HUD has taken several other steps under President Obama to address sexual orientation- and gender identity-based discrimination.

HUD Secretary Shaun Donovan has proposed policy changes that would stop discrimination on the basis of sexual orientation or gender identity in HUD’s core housing programs, require those who participate in HUD programs to comply with local anti-discrimination laws that cover sexual orientation and gender identity, and end mortgage-loan discrimination based on sexual orientation and gender identity. The policies are being drafted and must go through a period of public comment before being enacted.

HUD has also commissioned the first-ever national study of discrimination against LGBT people in the rental and sale of housing, and is currently seeking public comment at hud.gov to help design the study.

Like HUD, the Department of Labor recently issued an LGBT-related policy clarification, stating on June 22 that the Family and Medical Leave Act (FMLA) allows an employee to take unpaid leave to care for the legal children of the employee’s same-sex partner.

Keisling said she has heard some within the LGBT community call such moves by the Obama administration “token things”—but she believes they reflect a deeper change.

“Throughout the federal government now, they’re really taking a look to make sure all the things they do are fair for all people. . . . These are really huge decisions and huge advancements. They are pieces we want.”