HUD extends fairhousing protections

By Mark Zinman, Esq.

Wait, don’t stop reading – this isn’t a legal article about COVID-19, the eviction moratorium or other restrictions on landlord’s rights. Finally, for maybe the first time in over a year, there is something else to write about.

When it comes to fair-housing laws, the federal government has said that “sex” now includes sexual orientation and gender identity. While we have taught for years that a property owner or manager should never discriminate against a resident or prospective resident based upon their sexual orientation or gender identity, this policy has now been formally adopted by the U.S. Department of Housing and Urban Development (HUD).

HUD has also stated that it will look back over the past year and immediately start prosecuting cases on this basis.

Many people are not aware that sexual orientation and gender identity are not explicitly covered by the federal Fair Housing Act (FHA). It lists seven protected classes: race, color, religion, national origin, sex, familial status and disability.

The FHA does not explicitly include sexual orientation or gender identity. It has been debated and argued for years whether such classes fall under sex, or whether sex only applies to whether someone is male and female.

“Sex” was added as a protected class in 1975, right after important cases regarding women’s rights. Therefore, many people have argued that as of 1974, sex only referred to gender and that if sexual orientation is to be covered, it should be done so explicitly.

It’s important to note that Arizona mirrors the seven protected class listed on the federal level, and thus Arizona has not previously explicitly covered sexual orientation or gender identity.

Certain large cities in Arizona, such as Phoenix, are allowed to have additional protected classes and have included such classes as being protected. All other cities must only follow the protected classes as directed by the state.

So how did we get to this new position? In an employment lawsuit in 2020 (Bostock v. Clayton County, Ga.), the U.S. Supreme Court said that employees are covered from discrimination based upon sexual orientation and gender identity.

The remaining question was whether that ruling only applied to employment, or other areas of the law. On January 20, as one of his first executive orders, President Joe Biden ordered that all agencies across the federal government must review existing regulations and policies and revise them to expand “sex” to include sexual orientation and gender identity.

The Executive Order didn’t explicitly cover such groups, but rather directed the different federal agencies to do so.

On February 11, HUD was the first federal agency to act in accordance to President Biden’s Executive Order and announce that the Fair Housing Act bars discrimination based on gender identification and sexual orientation and will enforce the law to combat such biases. “At the core of this Department’s housing mission is an endeavor to ensure that all people peacefully enjoy a place they call home, where they are safe and can thrive, free from discrimination and fear. Yet, this ideal remains unrealized for lesbian, gay, bisexual, transgender, and queer identifying persons, who have been denied the constitutional promise of equal protection under the law throughout most of American history.”

We firmly believe that no AMA member would discriminate based upon sexual orientation or gender identity, and most companies have likely had an express policy against this behavior for years. This decision by HUD merely reflects the policies we have been teaching for years and which our clients have been practicing.

Mark B. Zinman is an attorney with Zona Law Group. He is a past and present board member with the AMA. He may be reached at 480-994-4732.