HUD to Begin Implementation of Executive Order to Prevent and Combat Sexual Orientation and Gender Identity-Based Discrimination

HUD announced on February 11 that it will administer and enforce a fair housing provision that prohibits discrimination on the basis of sexual orientation and gender identity. A memorandum stated that HUD will begin implementation of the policy set in forth in President Biden’s Executive Order 138988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (see Memo, 01/25). HUD is the first agency to release directives regarding the president’s day-one Executive Order.

The memorandum affirms that the decision made in U.S. Supreme Court’s landmark ruling in Bostock v. Clayton, County, Georgia, applies to the Fair Housing Act. The ruling, made on June 15, 2020, held that Title VII of the Civil Rights Act bars discrimination based on gender identity and sexual orientation (see Memo, 06/22). The memorandum states that HUD will act according to the Bostock decision, the policy in President’s Biden’s Executive Order, and the Fair Housing Act, to address housing discrimination against LGBTQ individuals. The memorandum specifically states:

“The memorandum relies on the Department’s legal conclusion that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace. In Bostock v Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity. HUD has now determined that the Fair Housing Act's prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity. Accordingly, and consistent with President Biden's Executive Order, HUD will enforce the Fair Housing Act to prevent and combat such discrimination.”

The memorandum also directs HUD’s Office of Fair Housing and Equal Opportunity and HUD-funded fair housing partners as follows:

  • 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, 2020, 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.

While the memo notes no specific actions to address the previous administration’s proposed anti-transgender changes to the Equal Access Rule (see Memo, 06/22), representatives from the White House and HUD assured stakeholders in a briefing call that updates are forthcoming. They reaffirmed a commitment to ensuring LGBTQ individuals receive full protection from housing discrimination. It is important to note that previous administration’s anti-transgender changes to the Equal Access Rule were never finalized and never went into effect.

The memorandum also extends to all housing covered by the Fair Housing Act and is therefore a broader application than the Equal Access Rule.

NLIHC will continue to inform readers on HUD’s implementation of President Biden’s Executive Order and updates to the Equal Access Rule.

If you believe you have experienced housing discrimination, you can file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 877-8339 (TTY/Relay). Housing discrimination complaints may also be submitted online at hud.gov/fairhousing.

Read HUD’s press release on the Memorandum: http://bit.ly/373GCvA

Read HUD’s press release on members of Congress and advocates’ response to the Memorandum: http://bit.ly/2ZdaZLq

Read the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation at: http://bit.ly/3p5Ogvq