On January 20, 2021 President Biden signed Executive Order #13988 affirming that:
- Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.
- The Constitution promises equal protection to all persons no matter their sexual orientation or gender identity.
- In Bostock v. Clayton County (6/15/2020), the Supreme Court held that Title VII of the Civil Rights Act’s prohibition again discrimination under the protected class of “sex” covers discrimination on the basis of gender identity and sexual orientation.
- The Biden Administration will fully enforce laws that prohibit discrimination based on sexual orientation and gender identity.
The Executive Order also calls on the head of each federal agency, as soon as practical, to review existing orders, regulations, rules, and guidance to ensure it is consistent with this policy.
To read the entire Executive Order, click here: https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf
On February 11, 2021 HUD issued a memo stating that in furtherance of the Executive Order, HUD’s Office of Fair Housing and Equal Opportunity will fully enforce the Fair Housing Act’s protected class of sex to include both protection due to sexual orientation and gender identity effective immediately.
To read the HUD Memo, click here: https://www.hud.gov/sites/dfiles/FHEO/documents/WordenMemoEO13988FHActImplementation.pdf
Since 1974, when the protected class of “sex” was added to the Fair Housing Act, it was defined as “gender” protection giving women the same rights as men to engage in housing-related activities. It also protected against sexual harassment. It did not, however, apply to persons who experienced discrimination due to their sexual orientation or gender identity.
Over the years, many states and localities added protection under their state or local fair housing laws to persons due to sexual orientation or gender identity, but it was not protected under federal law. In those states with no protection, it was legal to discriminate against someone who was in a same sex marriage, or who identified as gender neutral or a gender other than that which was assigned at birth.
In 2012, in response to evidence suggesting that LGBTQ+ individuals and families did not have equal access to housing opportunities, HUD issued a Final Rule on February 3, 2012 which required Owner/Agents of HUD assisted housing and housing that was financed under a HUD insured loan to redefine their definition of family to state that a family could be a single person or group of people regardless of sexual orientation, gender identity or marital status. The Rule affirmed that a family is not defined by blood, marriage or act of law. Violations of this new rule were considered to be a program violation, similar to not following requirements for recertification of income, and not a Fair Housing violation.
HUD’s 2012 Final Rule only impacted HUD assisted housing, not market rate rental housing, privately financed home ownership or non-financed home sales. Now, the new interpretation of the Fair Housing Act’s protected class of sex will cover the vast majority of housing transactions in the United States including market rate and affordable housing.
For the last 20 years, as I and other NCHM instructors have explained the seven protected classes under the Fair Housing Act, we made it a practice of telling students that the protected classes had not changed since 1988. Executive Order #13988 changed that and now all our instructors in our compliance classes are updating students on this significant expansion of protections.