Fair housing laws expanded to prohibit sexual orientation and gender identity discrimination
The federal Fair Housing laws prohibit housing discrimination based on persons being in specific “protected classes,” including race, color, religion, national origin, sex, disability or familial status. These laws protect people engaged in a variety of housing-related activities, such as buying or renting a home and can also apply in the context of community associations managing their communities and enforcing their standards.
On January 20, 2021, President Biden signed an Executive Order enacting federal policy to expand the reach of the fair housing laws to prohibit discrimination on the basis of sexual orientation or gender identity. The Executive Order specifically addresses a recent decision of the U.S. Supreme Court, Bostock v. Clayton County, in which the Court 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.
On February 11, HUD issued an Memorandum implementing the new policy and confirming that the federal fair housing laws are to be enforced and interpreted to ban discrimination on the basis of these protected classes. HUD’s Order will allow HUD to accept and investigate complaints of sexual orientation and gender-identity discrimination. The Order also requires that HUD 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. The Order states that where reasonable cause exists to believe that discrimination because of sexual orientation or gender identity has occurred, HUD’s Fair Housing and Equal Opportunity Office will refer a determination of cause for charge by HUD’s Office of General Counsel.
The Order also provides that organizations and agencies that receive grants through the HUD’s Fair Housing Initiative Program must carry out their funded activities to prevent and combat discrimination because of sexual orientation and gender identity. This includes state and local jurisdictions funded by HUD’s Fair Housing Assistance Program, who will be required to administer the federal fair housing laws to prohibit discrimination because of gender identity and sexual orientation. HUD’s press release on the new memorandum can be found at “HUD To Enforce Fair Housing Act to Prohibit Discrimination on the Basis of Sexual Orientation and Gender Identity.”
While it is not immediately clear how this shift in federal policy will affect condominium and homeowners associations, it is clear that no community association should discriminate on the basis of sexual orientation or gender identity. This applies particularly in the context of covenants and rules enforcement, activities where fair housing issues often arise. To the extent that your association has such issues, you may wish to seek counsel to ensure compliance with HUD’s expanded policy.