In line with the Supreme Court’s decision regarding discrimination based on sexual orientation or gender identity, President Biden signed an executive order earlier this year mandating that all federal agencies review the ruling and make needed adjustments. So what can property management companies expect? Should we wait on updated guidelines from HUD (Department of Housing and Urban Development) or should we make changes now to avoid any appearance of housing discrimination against LGBTQ+ prospects?

A Quick Legal Recap

President Biden signed an Executive Order on January 25, 2021, requiring protections of LGBTQ+ people in housing, health care, and education. The Executive Order cites the recent Supreme Court decision, Bostock v. Clayton County, that held that the prohibition against sex discrimination in the Equal Employment Act prohibits discrimination on the basis of sexual orientation and gender identity. The Executive Order requires the applicable federal agencies, including HUD, to promulgate actions consistent with Bostock and the various civil rights laws. This Executive Order will result in new HUD regulations explaining the protections of LGBTQ+ persons under the Fair Housing Act.  

A New Protected Category?

There is always confusion with any change. With this new ruling questions have been raised as to whether or not this ruling meant a new protected category. To clarify, we do not have a new protected category, rather we now have an expanded protected category of sex. Under this expansion, it is illegal to discriminate against anyone based on their sexual orientation or the gender they are presenting. 

The Time to Act Is Now

The next question raised is whether or not housing providers should start making changes now or wait for guidance from HUD. We believe there will be a notable increase in testing and enforcement of the new fair housing protections of LGBTQ+ people. Whenever changes in regulations occur, housing providers can expect an increase in testing by housing advocacy agencies. To avoid unnecessary liability, all housing providers should be educated about these changes, and ensure that all employees are properly trained and prepared for testers now.

Fair Housing Compliance and LGBTQ+ Prospects 

Consider a few situations that may arise. A same-sex couple is interested in renting an apartment. Can you ask them for a marriage certificate? How would you handle an individual who is dressed as a woman and the name they give doesn’t match their government-issued ID? 

Fair housing best practices in both of these situations are to ensure your policies are up to date according to the new laws and that they are applied across the board. If your policy does not require a heterosexual couple to produce a marriage certificate then you cannot request one from any other type of couple. As far as a person who uses a name other than what is on their ID, your policy needs to be the same for everyone regardless of how they are dressed. 

Now is the time to review your policies and make any needed changes according to the expanded understanding of the category of sex. Expect that testers will be focusing their attention on compliance with the new law. Up-to-date training is also absolutely necessary to make sure that every staff member is prepared to handle any situations that will arise. Remember the best way to avoid a fair housing complaint is to be fair housing compliant!