Housing Discrimination Protections for LGBTQ+ Renters

At the federal level, those protections can be found in the:

• Federal Fair Housing Act
• Bostock ruling
• President Biden's Executive Order No. 13,988 (EO 13,988)
• The U.S. Department of Housing and Urban Development (HUD) Equal Access Rule

At the state level, some states offer protection through:

• A state Human Rights Act or a state Civil Rights statute (similar to the federal Fair Housing Act)
• City-level fair housing ordinances

This article discusses housing nondiscrimination laws for LGBTQ+ people at the federal, state, and local levels.

Federal Fair Housing Act

The Federal Fair Housing Act (42 U.S.C. 3601) prohibits discrimination by providers of housing, such as landlords and real estate companies. The FHA specifically prohibits discrimination on the basis of:

• Race or color
• Religion
• Sex
• National origin
• Familial status
• Disability

While this federal law does not specify sexual orientation or gender identity, it provides the foundation on which the right to be free from such discrimination has been built.

According to the federal Fair Housing Act, a landlord may not:

• Advertise or express a preference for or against a tenant because they are in a protected category
• Refuse to rent to people in a protected category
• Falsely deny that a rental unit is available
• Set more restrictive standards for selecting or renting to tenants because they are in a protected category
• Terminate a tenancy for a discriminatory reason (such as finding out that a tenant is gay)

FHA housing discrimination protection applies to all public housing but exempts some private properties:

• Owner-occupied buildings with four or fewer rental units

• Single-family homes that are rented without the use of advertising or a real estate broker (unless the landlord owns more than three homes)

• Housing operated by religious organizations or private clubs that limit occupancy to their own members

Bringing an FHA Complaint

The Fair Housing Act defines procedures for handling complaints of discrimination. A fair housing complaint can be filed with HUD, or a victim can bring a lawsuit in federal or state court. The Department of Justice can also bring a lawsuit forward with a referral from HUD.

The Bostock Ruling Changes Everything

Before the Supreme Court's Bostock opinion, at least 20 states prohibited discrimination on the basis of sexual orientation or gender identity in some credit transactions

Then in 2020, in the case of Bostock v. Clayton County, Georgia, the Supreme Court explicitly looked at sex discrimination laws, civil rights, and protected classes on the basis of sexual orientation and gender identity.

The Court decided that Title VII of the Civil Rights Act, which forbids discrimination in the workplace on the basis of sex, would also forbid discrimination because of sexual orientation or gender identity.

The court specifically said its reasoning should not extend to other statutes that prohibit discrimination based on sex. Other courts concluded, however, that the Bostock reasoning applied to other statutes as well.

Executive Order No. 13,988

In 2021, the Biden Administration issued Executive Order No. 13,988 (EO 13,988), which stated that: “Under Bostock's reasoning, laws that prohibit sex discrimination . . . also prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary." 

This included the Fair Housing Act, Title IX, Section 1557 of the ACA, and the Equal Credit Opportunity Act (ECOA). This Executive Order protected the LGBTQ+ community from a variety of discriminatory practices.

HUD's Equal Access Rule

HUD's General Counsel concluded that Bostock applied to the FHA because they share a comparably broad purpose of “eradicat[ing] discriminatory practices." HUD had already been enforcing an equal access rule that:

• Prohibited landlords and housing providers from discriminating on the basis of actual or perceived sexual orientation or gender identity
• Prohibited housing programs from denying housing because of actual or perceived HIV/AIDS status. This was based on the Fair Housing Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act.

HUD issued three program rules that constitute its Equal Access Rule:

• Equal access to housing regardless of actual or perceived sexual orientation, gender identity, or marital status. This rule expanded the definition of family in most of HUD's programs.
• Equal access to housing for Native American and Native Hawaiian people regardless of sexual orientation or gender identity.
• Equal access in accordance with an individual's gender identity in community planning and development programs. Providers that operate single-sex projects are required to provide transgender individuals with access to programs, benefits, services, and accommodations in accordance with their gender identity.

State Fair Housing Laws

LGBTQ+ renters are also protected in many states by state and municipal fair housing laws. What's more, these often cover properties or situations that are exempt under federal fair housing law. (Check your state fair housing agency for details.)

Minnesota's Human Rights Act, for example, includes civil rights protections similar to the federal Fair Housing Act. It adds sexual orientation and marital status as protected classes. The Human Rights Act also extends the type of housing providers. It includes owner-occupied fourplexes and, in some cases, those who rent out rooms in their homes.

Municipal Action

Municipalities (such as cities and towns) can also issue their own protections. In Minnesota, for example, cities are encouraged to have a designated Fair Housing Officer. This person is in charge of receiving fair housing complaints and providing referral information.

If cities identify a need for additional protections for a particular group of people, they could consider passing a fair housing ordinance with additional protections. Cities can add additional protected classes. For example, a local jurisdiction could add age to their local city ordinance.

Examples of LGBT Housing Discrimination

Below are some examples of rental housing discrimination. It's important to remember that illegal housing discrimination can result from actual or perceived gender identity, sexual orientation, and HIV/AIDS status.

• A housing provider refuses to rent a house to a same-sex couple although they will rent to a heterosexual couple.

• A 55+ community rejects a gay man's request to add a same-sex partner to their lease. The manager says she doesn't consider their marriage legal.

• A building superintendent makes sexually harassing remarks to a tenant because she is a lesbian.
• A landlord evicts a tenant because they think the person is bisexual and may have AIDS.
• A HUD-funded transitional housing program refuses to house transgender people because other residents would be uncomfortable.

How To File a Housing Discrimination Complaint

Have you been the victim of housing discrimination because of your sexual orientation, gender identity, or HIV/AIDS status? Contact HUD's Office of Fair Housing and Equal Opportunity at (800) 669-9777 to file a complaint. You can also contact a local civil rights attorney to bring a case against the housing provider.