The Department of Housing and Urban Development (“HUD”) has unveiled a series of proposed rule changes that would prohibit lenders from using sexual orientation or gender identity as a way of determining a borrower's eligibility.
The proposed rule changes will (a) define sexual orientation and gender identity, (b) prohibit inquiries regarding sexual orientation and gender identity, (c) prohibit sexual orientation and gender identity as grounds for decision making in Federal Housing Administration (“FHA”) programs, and (d) would clarify that all eligible families, regardless of marital status, sexual orientation, or gender identity, have the opportunity to participate in HUD programs, including the housing choice voucher program.
The proposed rule changes come in response to information gathered by HUD which suggests that gay, lesbian, bisexual, and transgender (“LGBT”) individuals and families are arbitrarily excluded from housing opportunities because of their sexual preferences and gender identities. The decision by HUD to seek to protect LGBT individuals and families is a controversial decision, but one which is supported by the findings of arbitrary discrimination. One of the primary goals of the Fair Housing Act (“the Act”) is to eliminate arbitrary and invidious discrimination in the area of housing, and HUDs attempt to protect LGBT individuals and families is well in line with the federal goals of the Act and the mission of HUD.
If you wish to review and comment on the proposed rule changes, you can do so at www.regulations.gov .
Showing posts with label LGBT. Show all posts
Showing posts with label LGBT. Show all posts
HUD Acts to Strengthen Anti-Discrimmination Policies in Recognition of LGBT Pride Month
In celebration of LGBT Pride Month the U.S. Depart of Housing and Urban Development (HUD) announced an update in policy which proposes new methods for addressing LGBT individuals faced with housing discrimination. The Fair Housing Act does not address housing discrimination based on sexual orientation specifically, nor does it cover gender identity-based discrimination. However, HUD Secretary Shaun Donovan suggest that these types of issues could be addressed using other protect groups, for example LGBT parties could claim gender discrimination or discrimination based on a perceived disability.
The announcement by HUD regarding adding stronger policy, also encourages individuals to look at state laws and other local protections such as are enacted in approx. 20 states and a number of municipalities, which prohibit LGBT discrimination. HUD says local laws are not used in place of HUD but that they (local laws) can work in concert with the administrative efforts of HUD. Tenants can still file a complaint under the Fair Housing Act in federal district court.
The uncertainty of the economy makes housing an issue for all; however, according to National Center for Transgender Equality, those susceptible to discrimination, such as the LGBT community among others, find themselves especially vulnerable when no laws explicitly address these issues. Currently a significant number of transgender people are suffering eviction or homeless due to the lack of firm policy addressing LGBT non-discrimination. For this reason advocates want to see stronger law enacted to protect the housing of transgender tenants.
Three new bills are pending in the House, which would add specific language that speaks to discrimination in housing based on sexual orientation or gender identity. In addition to the efforts of some elected officials to pass more meaningful and impactful law, HUD has also taken steps to address such discrimination, including proposing policy that would address the issue in the core HUD housing programs requiring participant’s compliance with any local anti-discrimination laws addressing sexual orientation and gender identity. Mortgage and loan discrimination based on the same type of discrimination is also a target for reform. Though these changes in policy still must face review by the public and the laws must be voted though the House, these are long awaited steps in the right direction.
What Obama's Proposed Inclusionary LGBT Housing Rule Does and Does Not Do
The U.S. Housing and Urban Development Department conducted a listening session on Thursday in an effort to gather input on how to design the first-ever national survey of LGBT housing discrimination. The session was hosted at Chicago's city hall and included over a dozen members of the gay community, fair housing advocates and government officials who shared their stories and perspectives on the issue. (Full Washington Post article here).
One concern expressed the need for testers to "think of a way to make it clear that this is a gay couple and not just two men who really can't afford to do anything than get a single apartment with a single room," said John Knight of the ACLU.
This marks one of the first steps by HUD to fulfill their promise made in October of assuring the LGBT community inclusion in HUD programs. (Full Press Release Here).
In that press release HUD Secretary Shaun Donovan announced, "The evidence is clear that some are denied the opportunity to make housing choices in our nation based on who they are and that must end. President Obama and I are determined that a qualified individual and family will not be denied housing choice based on sexual orientation or gender identity."
The administration intends to achieve this goal in three ways:
1) through the promulgation of a rule that clarifies the term "family" in HUD's public housing and Housing Choice Voucher programs to include otherwise eligible LGBT individuals and couples; 2) require grantees and those who participate in the Department's programs to comply with local and state non-discrimination laws that cover sexual orientation or gender identity; 3) specify that any FHA-insured mortgage loan must be based on the credit-worthiness of a borrower and not on unrelated factors or characteristics such as sexual orientation or gender identity.
As evidence that this is an issue of national concern, Michigan in 2007 issued a report finding that nearly 30 percent of same-sex couples were treated differently when seeking housing (Michigan's full report here).
What does this mean for the LGBT and fair housing communities?
First, the rule does not change the Federal Fair Housing Act to include the LGBT community. LGBT persons can still be denied the sale or rental of housing on the basis of this status under federal law. While many people have expressed disappointment with this deficiency in the proposed rule, such a revision of the FHA would almost certainly be struck down in the federal courts on the basis that the President exceeded his executive powers in an attempt to legislate from the White House. The only promulgation I could conceive of as possibly escaping this Separation of Powers issue is HUD rule defining the meaning of "sex" to include gay, lesbian, bi, and transgender persons. While court's are required to grant Administrative agencies great deference in their interpretations of statutes, the courts would likely strike the rule down as an abuse of discretion in statutory interpretation.
Though the rule does not propose to change the FHA, the commissioned national study likely has that purpose. The release of that report will be used by LGBT and equal rights interest groups to place pressure on the legislature to pass an LGBT inclusive amendment. It is important to note however that while federal law is deficient in this area, 17 states and 80 cities have included LGBT provisions in their own housing laws.
Second, as many are unaware, The Housing Choice Voucher Program refers to what is more widely known as Section 8 housing. The proposed rule would make it illegal for HUD to discriminate against the LGBT community in the distribution of these housing subsidies. Presently, HUD agents could deny such vouchers to LGBT couples on the basis that they do not fit within the program's definition of family; hence the rule clarifying what "family" actually means in order to include LGBT persons.
Third, if my reading of the press release is accurate, the new rule would require landlords receiving section 8 vouchers to comply with those state and municipal laws that have LGBT inclusive provisions.
Finally, the rule would prohibit the Federal Housing Administration, a government agency created in 1934 under the National Housing Act to provide home financing through the insurance of mortgage loans, from discriminating against the LGBT community in the granting of FHA-insured mortgages. More on FHA insured mortgages here.
One concern expressed the need for testers to "think of a way to make it clear that this is a gay couple and not just two men who really can't afford to do anything than get a single apartment with a single room," said John Knight of the ACLU.
This marks one of the first steps by HUD to fulfill their promise made in October of assuring the LGBT community inclusion in HUD programs. (Full Press Release Here).
In that press release HUD Secretary Shaun Donovan announced, "The evidence is clear that some are denied the opportunity to make housing choices in our nation based on who they are and that must end. President Obama and I are determined that a qualified individual and family will not be denied housing choice based on sexual orientation or gender identity."
The administration intends to achieve this goal in three ways:
1) through the promulgation of a rule that clarifies the term "family" in HUD's public housing and Housing Choice Voucher programs to include otherwise eligible LGBT individuals and couples; 2) require grantees and those who participate in the Department's programs to comply with local and state non-discrimination laws that cover sexual orientation or gender identity; 3) specify that any FHA-insured mortgage loan must be based on the credit-worthiness of a borrower and not on unrelated factors or characteristics such as sexual orientation or gender identity.
As evidence that this is an issue of national concern, Michigan in 2007 issued a report finding that nearly 30 percent of same-sex couples were treated differently when seeking housing (Michigan's full report here).
What does this mean for the LGBT and fair housing communities?
First, the rule does not change the Federal Fair Housing Act to include the LGBT community. LGBT persons can still be denied the sale or rental of housing on the basis of this status under federal law. While many people have expressed disappointment with this deficiency in the proposed rule, such a revision of the FHA would almost certainly be struck down in the federal courts on the basis that the President exceeded his executive powers in an attempt to legislate from the White House. The only promulgation I could conceive of as possibly escaping this Separation of Powers issue is HUD rule defining the meaning of "sex" to include gay, lesbian, bi, and transgender persons. While court's are required to grant Administrative agencies great deference in their interpretations of statutes, the courts would likely strike the rule down as an abuse of discretion in statutory interpretation.
Though the rule does not propose to change the FHA, the commissioned national study likely has that purpose. The release of that report will be used by LGBT and equal rights interest groups to place pressure on the legislature to pass an LGBT inclusive amendment. It is important to note however that while federal law is deficient in this area, 17 states and 80 cities have included LGBT provisions in their own housing laws.
Second, as many are unaware, The Housing Choice Voucher Program refers to what is more widely known as Section 8 housing. The proposed rule would make it illegal for HUD to discriminate against the LGBT community in the distribution of these housing subsidies. Presently, HUD agents could deny such vouchers to LGBT couples on the basis that they do not fit within the program's definition of family; hence the rule clarifying what "family" actually means in order to include LGBT persons.
Third, if my reading of the press release is accurate, the new rule would require landlords receiving section 8 vouchers to comply with those state and municipal laws that have LGBT inclusive provisions.
Finally, the rule would prohibit the Federal Housing Administration, a government agency created in 1934 under the National Housing Act to provide home financing through the insurance of mortgage loans, from discriminating against the LGBT community in the granting of FHA-insured mortgages. More on FHA insured mortgages here.
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