Access to Fair Housing for LGBTQ+ Older Adults
For LGBTQ+ older adults (OA) who are non-homeowners, the number one barrier to aging in place is fair access to affordable and safe housing.
A 2014 study found that 48% of LGBTQ+ OA have faced some form of rental housing discrimination. Nineteen states have no protections in place to prevent housing discrimination based on sexual orientation or gender identity (SOGI).
Efforts have been made in recent years for Congress to pass the Equality Act, which would amend the Fair Housing Act (FHA) to include explicit language outlawing discrimination based on SOGI. However, it has not yet been signed into law.
LGBTQ+ Older Adult Housing Discrimination Cases
Walsh v. Friendship Village of South County
In 2018, a Missouri senior living community rejected Mary Walsh and her wife Bev Nance specifically because of their same-sex marriage. In Walsh v. Friendship Village of South County, the district court favored the senior living community, holding that as a same-sex couple, Mary and Bev were not protected under Title VII of the Civil Rights Act of 1964's prohibition of sex discrimination.
After the Supreme Court's ruling in Bostock v Clayton County (2020) that unlawful workplace sex discrimination defined in Title VII included discrimination based on SOGI, the Eighth Circuit Court of Appeals vacated the district court's judgment. Mary and Bev obtained a settlement from the senior living community.
Wetzel v. Glen St. Andrew Living Community, LLC
After her partner of 30 years died, Marsha Wetzel relocated to a senior residential community in Illinois, where she endured extreme physical and verbal abuse from other residents who routinely berated her with homophobic slurs.
Management not only ignored her complaints but took retaliatory measures. On one occasion, a staff member slapped her across the face.
In Wetzel v. Glen St. Andrew Living Community, LLC the 7th Circuit Court of Appeals held that management had a duty to protect Marsha from the known homophobic abuse under the FHA. Management's appeal to the U.S. Supreme Court was eventually dismissed and a settlement reached in 2019.
Protecting LGBTQ+OA From Housing Discrimination
Federal protection from housing discrimination for LGBTQ+ people shifts dramatically depending on case law and Executive Branch leadership. This is because the Executive Branch directly oversees the U.S. Department of Housing and Urban Development (HUD), the federal agency charged with enforcing the FHA.
Following the Supreme Court decision in Bostock, President Biden released an Executive Order directing all federal agencies, including HUD, to enforce federal prohibitions on sex discrimination on the basis of SOGI.
On February 11, 2021, HUD issued a memo that directed its Office of Fair Housing and Equal Opportunity (FHEO) to accept and investigate all complaints of SOGI-based sex discrimination and instructed both state and local organizations and agencies entering into Fair Housing Assistance Program (FHAP) agreements and/or receiving HUD funding through the Fair Housing Initiative Program (FHIP) to interpret sex discrimination under the FHA to include SOGI discrimination and adjust their policies to comply with the FHA.
At the core of [HUD] 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 [LGBTQ+] identifying persons, who have been denied the constitutional promise of equal protection under the law throughout most of American history. [T]hese injustices have perpetuated across our civic institutions: the workplace, the marketplace, places of education . . . [A]mong 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.
-Jeanine M. Worden, FHEO Acting Assistant Secretary
Filing a Housing Discrimination Complaint
If you rely on any kind of public housing assistance and have suffered discrimination preventing you from obtaining or keeping housing due to your sexual orientation or gender identity (real or perceived), you can file complaints with the:
Additionally, if you qualify for public housing assistance, you may also qualify for free legal help from a local legal aid organization.
LGBTQ+ Welcoming Housing Opportunities
However, high-quality senior housing is costly, presenting an extra challenge for LGBTQ+ OA living on fixed incomes. To fill the need for affordable housing for LGBTQ+ OA, some cities have formed public-private partnerships to offer LGBTQ+-affirming senior housing, like Chicago's Town Hall Apartments or Los Angeles' Triangle Square Apartments.
Protections Under State Law
Housing discrimination against LGBTQ+ people will continue until the Fair Housing Act specifically includes sexual orientation and gender identity as protected classes in its nondiscrimination provisions. If Congress passes the Equality Act, then Bostock will be codified into law, extending nondiscrimination protections to LGBTQ+ people in housing, public accommodations, and other areas.
In the meantime, twenty-three states and the District of Columbia have enacted their own laws to protect LGBTQ+ people from housing discrimination, but the protections are limited to those jurisdictions.
If you have faced housing discrimination and would like to understand the protections in your state, you can reach out to a local attorney experienced in fighting against discrimination.
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