HUD’s new program regulation affording equal access to the department’s programs without regard to sexual orientation or gender identity becomes effective on March 5. I have received many inquiries asking why HUD decided to make a program rule instead of adding sexual orientation and gender identity as protected classes under the Fair Housing Act. While what I offer here is somewhat speculative on my part, it seems to me a highly probable scenario.
The Fair Housing Act is actually Title VIII of the Civil Rights Act of 1968. That law specifically excludes protection for individuals who are gay. In order for HUD to amend the Act to include sexual orientation and gender identity, both the House of Representatives and the United States Senate would have to vote in favor of the amendment. Instead of taking this route (and we can easily imagine the political gamesmanship that would ensue), HUD has the authority on its own to amend its program rules. Thus the final rule that it issued.
I believe that the approach HUD has taken is more than just politically expedient. By making this program rule, and smartly including heterosexuality along with gay and bisexual in its definition of “sexual orientation,” HUD does two things: (1) It makes absolutely clear its intent and (2) It establishes a greater penalty for non-compliance than would exist with a Fair Housing Act amendment. Adverse action alleging violation of the Fair Housing Act requires a complaint and an accompanying resolution process if the complaint is not settled. Whereas HUD, and HUD alone, has broad latitude in areas of program non-compliance—all the way from corrective action to termination of the HAP contract.