On August 20, 2014, HUD published Notice PIH 2014-20 (HA), which provides details on the final rule published by HUD on February 3, 2012 guaranteeing equal access to housing in HUD programs regardless of Sexual Orientation or Gender Identity. This final rule requires that HUD assisted and insured housing programs be open to all eligible individuals regardless of sexual orientation, gender identity, or marital status.
The rule does not create any new protected classes under the Fair Housing Act or any other civil rights law. Although the Fair Housing Act does not include sexual orientation, gender identity, or marital status as protected classes, complaints involving LGBT persons may raise claims that are actionable under one or more of the Fair Housing Act’s protected classes. The HUD Notice gives examples of these situations.
This rule applies to all HUD housing programs, and covers private owners that participate in the Section 8 program. Private owners that participate in the Housing Choice Voucher (HCV) Program become subject to the rule when the owner executes a Housing Assistance Payments (HAP) contract with the PHA.
Public Housing Agencies (PHAs) affected by the rule must make revisions to various plans and policies, including the
- Annual Plan;
- Section 8 Administrative Plan; and
- Public Housing Tenant Selection Policies
The PHA’s definition of family as provided in the admissions and continued occupancy policies will have to be amended as a result of the rule and Notice.
The Notice provides various examples of violations that could occur.
Fair Housing Implications
While the Fair Housing Act does not specifically include sexual orientation, gender identity and marital status as protected characteristics, courts have recognized that the Fair Housing Act’s prohibition against discrimination because of sex includes discrimination based on non-conformance with sex stereotypes. Under certain circumstances, complaints involving sexual orientation, gender identity and marital status may be investigated under the Fair Housing Act.
Many states and localities prohibit housing discrimination on the basis of sexual orientation, gender identity and marital status, and HUD may refer complaints or other information concerning these protected classes to appropriate state and local fair housing agencies.
All owners and managers involved with HUD housing programs should obtain a copy of the Notice and carefully review and implement the requirements.