The HUD directive builds on the Obama administration’s efforts to end housing discrimination against gay and transgender people, protections that the Trump administration attempted to dismantle.
The 2012 Equal Access Rule barred federally funded housing programs from discriminating on the basis of sexual orientation or gender identity. In 2016, HUD amended its definition of gender identity to more clearly reflect the difference between actual and perceived gender identity and clarified that sex-based discrimination could be motivated by perceived nonconformity with gender stereotypes.
The change was meant to protect transgender people from discrimination — and danger — at homeless shelters because they were often denied access to emergency shelter that corresponds to their gender identity.
“This limited enforcement of the Fair Housing Act’s sex discrimination prohibition, while a step forward, is insufficient to satisfy the Act’s purpose of providing fair housing throughout the United States to the full extent permitted by the United States Constitution,” wrote Jeanine M. Worden, acting assistant secretary for HUD’s Office of Fair Housing & Equal Opportunity in Thursday’s memorandum.
A HUD official told The Washington Post that Thursday’s move expands the universe of people who can file a fair-housing complaint because individuals will no longer have to make a nonconformity allegation in discrimination claims.
The Fair Housing Act prohibits housing discrimination on the basis of race, color, national origin, religion, sex, familial status and disability. But before last summer’s Supreme Court ruling in an employment discrimination case, HUD’s legal interpretation of what constituted sex discrimination changed, depending on the presidential administration. Now HUD officials say the agency will administer the law to prohibit discrimination on the basis of sexual orientation and gender identity.
“What the Biden administration is doing now is incredibly important, doing right by some of the most marginalized people in the United States who need access to federal housing programs,” said Mara Keisling, executive director of the National Center for Transgender Equality. “What’s really significant about it is they are using the Fair Housing Act, which is what we think the [Supreme Court] decision would require.”
Under the Trump administration, HUD introduced a proposal to allow federally funded homeless shelters to deny people admission on religious grounds or force transgender women to share bathrooms and sleeping quarters with men.
Former HUD secretary Ben Carson angered agency staff and civil rights advocates when he expressed concern about “big, hairy men” trying to infiltrate women’s shelters during an internal meeting at HUD’s San Francisco office in 2019.
Carson often justified the reversal of Obama-era protections by saying he believes in equal rights, not “special rights,” and said he had received complaints of men who pretend to be women to gain access to battered women’s shelters. (Transgender advocates called Carson’s defense a common, damaging and insulting trope that had long been debunked.)
The Trump administration not only eroded fair housing protections for transgender people and other groups, but it also rarely enforced existing law. Civil rights and housing advocates have recommended that Rep. Marcia Fudge (D-Ohio), Biden’s HUD nominee, reinstate and expand those protections.
Now, after consulting with the White House and Department of Justice, HUD officials say they have determined that the Fair Housing Act bars discrimination based on gender identification and sexual orientation and will enforce the law to combat such biases. They said the new guidance was necessary because studies have shown same-sex couples and transgender people experience less favorable treatment than their straight and cisgender counterparts when seeking rental housing.
The agency will accept and investigate complaints from people who think they have been subject to housing discrimination based on sexual orientation or gender identity going back to Jan. 20, 2020, one year before Biden’s executive order. HUD officials said the fair housing office has received about 200 complaints alleging discrimination based on gender identity or sexual orientation in the past year, but expect those numbers to rise as people are made aware of the agency’s new enforcement policy.
In a call with reporters, HUD officials characterized Thursday’s action as the first step the Biden administration is taking to uphold LGBTQ rights and said future announcements can be expected.
“Certainly the Obama administration made a lot of headway into ending housing discrimination against LGBTQ people, and it’s really good to see that progress picked back up,” said Dylan Waguespack, public policy director at True Colors United, an organization focused on ending homelessness among gay and transgender youths.