On February 11, 2021, the U.S. Department of Housing and Urban Development (“HUD”) published a memorandum that directed its Office of Fair Housing and Equal Opportunity (“FHEO”) to begin accepting and investigating Fair Housing Act claims that include allegations of discrimination because of an individual’s gender identity or sexual orientation. The lead up to this moment has experienced fits and starts over the last several years on administrative, judicial and legislative levels alike; however, HUD’s February 11, 2021 memorandum marks a substantial step in the administrative sphere that will likely reverberate in the judicial, and possibly, legislative spheres.
The timing of the February 11, 2021 memorandum is in lockstep with the growing diversity within our communities and the U.S. Supreme Court’s decision in Bostock v Clayton Co, Georgia, 140 S Ct 1731 (2020), which held that Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, prohibited employment discrimination because of an individual’s gender identity or sexual orientation. Moreover, as of 2018, 4.5% of U.S. adults identified as LGBT, with 8.2% of millennials identifying as such. HUD’s February 11, 2021 memorandum is a timely, helpful reminder to all community associations to take proactive steps that encourage diversity and inclusion and promote equal housing opportunities for all within their communities.
The Legal Landscape Prior to HUD’s February 11, 2021 Memorandum
The Fair Housing Act, codified at 42 USC § 3601 et seq., prohibits discrimination, “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 USC § 3604(b). Michigan’s Elliott-Larsen Civil Rights Act, codified at MCL 37.2101 et seq., also prohibits sex discrimination, “against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction.” MCL 37.2502(1)(b). While both the Fair Housing Act and Elliott-Larsen Civil Rights Act prohibit sex discrimination, neither explicitly prohibits discrimination on the basis of a person’s gender identity or sexual orientation. As a result, over the last several years, agencies and federal courts have been left to figure out for themselves whether sex discrimination also prohibits discrimination on the basis of a person’s gender identity or sexual orientation.
Why Is HUD’s February 11, 2021 Memorandum Being Issued Now?
The U.S. Supreme Court’s decision that sex discrimination within the employment sphere included discrimination because of an individual’s gender identity or sexual orientation came down on June 15, 2020. Then, just last month, President Joe Biden issued Executive Order 13988 on his first day in office, announcing a policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation”, relying, in part, on the U.S. Supreme Court’s recent decision in Bostock.
Executive Order 13988 directed the heads of all federal agencies to “revise, suspend, or rescind . . . agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination” and the administration’s policy of fighting discrimination on the basis of an individual’s gender identity or sexual orientation.
What Does HUD’s February 11, 2021 Memorandum Say?
The February 11, 2021 Memorandum was issued in accordance with Executive Order 13988 after HUD determined that the Fair Housing Act’s sex discrimination provision prohibited discrimination on the basis of gender identity or sexual orientation, in line with the U.S. Supreme Court’s Bostock decision, and issued its own policy statement:
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. Courts and governments have routinely withheld legal legitimacy from loving couples because of their sex and denied many persons the freedom to express a gender that defies norms. These injustices have perpetuated across our civic institutions: the workplace, the marketplace, places of education, and many others. But among the most personal and fundamental of these institutions is housing, where, when granted the protection of fair housing law, we all can enjoy the happiness and freedom to love whom we choose and to safely express who we are.
The memorandum then directs the FHEO to begin accepting and investigating all housing sex discrimination complaints based on an individual’s gender identity or sexual orientation. It also directs all state and local agencies that have either entered into agreements with HUD under the Fair Housing Assistance Program (“FHAP”) or that receive grants through the Fair Housing Initiative Program (“FHIP”) to implement this prohibition against discrimination based on an individual’s gender identity or sexual orientation and accept and investigate complaints accordingly. The memorandum also directs the FHEO, FHAP and FHIP to re-review all discrimination allegations dating back to January 20, 2020 and notify persons who previously alleged discrimination based on their gender identity or sexual orientation that they may now have a claim to file.
How to Promote Diversity and Inclusion Within Your Community
HUD’s February 11, 2021 memorandum is a helpful reminder that even while our communities are becoming more diverse than ever, not every individual enjoys the full benefits of housing within our communities. To help close this gap, community associations should consider doing the following:
- Adopt a diversity and inclusion policy that celebrates your community’s diversity and reminds your members that everyone is welcome, no matter their religion, race, color, national origin, age, sex, familial status or marital status.
- Post the Equal Housing Opportunity sign in high-traffic areas throughout your community as a visual reminder to all members that your community is committed to embracing diversity.
- Adopt an anti-discrimination policy that provides your members with a mechanism to report discriminatory conduct within the community so your association can take prompt action to address conduct that is not in line with your commitment to diversity and may violate the Fair Housing Act.
- Contact community association counsel promptly when your association becomes aware of any discriminatory conduct within the community in order to appropriately address the conduct.
Kayleigh B. Long is an attorney with Hirzel Law, PLC and focuses her practice in the areas of appellate law, community association law and civil litigation. Ms. Long received her Bachelor of Arts degree in International Studies from Indiana University. Prior to attending law school, Ms. Long joined Teach for America, teaching kindergarten in Harper Woods, Michigan and southeast Washington, D.C., and received a Master of Arts in Teaching from Oakland University. Ms. Long then obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Her law review note was published in the Indiana Law Review, and she has published articles in the Denver Law Review and Michigan Real Property Review. She can be reached at (248) 986-2290 or klong@hirzellaw.com.
