By: Brad Kneeland
In America, there are certain unalienable rights bestowed upon us. We have freedom of speech. We have habeas corpus. We have the right to life, liberty, and the pursuit of happiness. But for millions of Americans, the pursuit of happiness is often impeded by their inability to get fair housing. In an effort to combat discrimination that has a history of running prevalent in our nation, Congress passed the Fair Housing Act of 1968, which was designed to protect buyers and renters of houses and apartments against discrimination based on their inclusion in a suspect class, for example, race, religion, or sex. The Act was designed to serve a particular purpose during a particular time in American history, alleviating discrimination in housing based on someone’s inclusion in a protected class; but as society has evolved and the times have changed, there are holes in the Act that are leaving some segments of American society unprotected, particularly LGBT Americans.
According to the Human Rights Campaign, the Fair Housing Act provides no protections for American citizens based on their sexual orientation or gender identity. As a result, there are no federal laws or protections in place to ensure that LGBT Americans are afforded the same protections that the Fair Housing Act is designed to bring about. For some Americans, there are state laws in place to guarantee housing protections, but for millions of Americans, there are not even state laws in place to protect them from housing discrimination. Currently, there are twenty-seven states with no housing protections for LGBT Americans. Two states—Tennessee and Arkansas—even have laws in place preventing the enforcement of local nondiscrimination acts. For the millions of LGBT Americans, their families, and their children, there are no laws to ensure their protection from being denied housing and shelter because of who they are and whom they love. A 2014 report from the Equal Rights Center—a national nonprofit working to ensure equal opportunity in housing, employment and access to public accommodations and government services—reported that 48% of older same-sex couples in a 10 state investigation experienced differential treatment when it came to housing, including fewer rental options, more complicated application requirements, and higher fees.
While state protections vary from jurisdiction to jurisdiction and while the Fair Housing Act does not explicitly mention sexual orientation or gender identity as a class subject to protection, the Obama Administration has taken substantial steps in extending the bridge between LGBT individuals and protection from discrimination in order to ensure fair access to housing, including extending HUD programs to cover LGBT individuals by adjusting the government directives within their purview. HUD, The Department of Housing and Urban Development, notes that “housing providers that receive HUD funding, have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, may be subject to HUD program regulations intended to ensure equal access of LGBT persons.” These new directives, adopted in 2012, were put in place to ensure that core Housing & Urban Development programs “are open to all eligible individuals and families regardless of sexual orientation, gender identity and marital status.” In order to accomplish this goal, these HUD directives were designed to prohibit owners and operators of any HUD-assisted housing or any housing who has their financing insured by the Department of Housing and Urban Development from inquiring about the sexual orientation or gender identity of any applicant or occupant, whether renter or owner occupied. The directive also updated terminology used by the department, such as the word “family,” to make them more inclusive to LGBT individuals.
In addition to executive action, there has also grown an increase in judicial action, particularly on the part of the Supreme Court, which could bring about equal treatment of LGBT individuals when it comes to housing laws. Sherry Chris, the CEO of Better Homes and Gardens Real Estate, believes that, in light of the Supreme Court’s ruling in favor of same-sex marriage, housing discrimination will be one of the next issues for the Supreme Court to address—particularly in that there is a strong correlation between marriage and housing. Chris conducted a survey on the issue, which showed “69% of LGBT renters and 56% of LGBT homeowners said getting married would be a motivator for them to buy a home.” There has also been action on the legislative front. In July, 2015, Senator Jeff Merkley of Oregon introduced a bill in the Senate that would elevate LGBT individuals to the same class status as those protected by the Civil Rights Act of 1964. As of July, 2015, the bill had the backing of 40 Senators and 158 House members. With no Republicans supporting the bill, it appears success will depend on whether or not Democrats gain a majority on Congress and maintain the White House.
While there are no federal laws that afford fair housing opportunities to LGBT individuals and while the Fair Housing Act has deficiencies in respect to extending protections to LGBT individuals and families, there does appear to be a growing demand for protections and fair treatment, as well as action throughout the branches of our federal (and some state) governments. While many states afford no protections to LGBT individuals, many have laws in place to provide fair housing to LGBT individuals and families. The Obama Administration has worked to extend, within their authority, protection against discrimination and unfair treatment from landlords and companies who receive federal funding from the Department of Housing and Urban Development. There have been a string of LGBT-themed victories in the Supreme Court, and there has been growing legislative action to add LGBT status to the list of categories afforded protection under civil rights and anti-discrimination statutes, as well as the sense of a moral obligation put on legislators to protect their constitutes from discrimination. As Senator Merkley said in an interview with the Huffington Post, “(w)e need to set the gold standard and simply say, ‘Discrimination is wrong. Equality and opportunity are right.’”