HUD to Enforce Fair Housing Act Based on Sexual Orientation and Gender Identity Discrimination

The United States Department of Housing and Urban Development (HUD) recently announced that it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity. The HUD announcement implements President Biden’s January 20, 2021 Executive Order instructing that all statutes which prohibit sex discrimination should be applied to discrimination based on sexual orientation and gender identity, so long as the statute does not contain sufficient indications to the contrary.

In explaining its February, 2021 interpretation of the Fair Housing Act, HUD relied on the 2020 decision of the United Supreme Court in Bostock v. Clayton County which ruled that discrimination in the workplace based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964 which prohibits discrimination “because of…sex”.

Because the relevant text of Title VII is nearly identical to that of the Fair Housing Act and nothing in the statutory text, purposes, or precedent suggests that sex discrimination under the Fair Housing Act should be construed more narrowly than Title VII with respect to discrimination because of gender identity or sexual orientation, HUD will now accept complaints alleging housing discrimination on such basis. This includes complaints which allege that a housing provider “subjects a resident to different terms or conditions in part because of that resident’s sexual orientation or gender identity”. In investigating complaints, HUD will comply with the Supreme Court’s legal precedent in Bostock and President Biden’s Executive Order.

The fair housing statutes in some states, including Maryland and some Maryland counties and municipalities, specifically prohibit discrimination based on sexual orientation and gender identity. These laws will continue to be enforced by state and local government fair housing agencies.

Posted by Thomas Schild Law Group, LLC which represents condominiums, homeowner associations, and housing cooperatives throughout Maryland (including Montgomery County, Prince George’s County, Howard County, Frederick County, and Baltimore) and Washington, D.C.

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