HUD’s Office of Public and Indian Housing (PIH) issued Notice PIH 2014-20 on August 20, providing public housing agencies (PHAs) with guidance on how to comply with the Equal Access Rule. That rule requires all of HUD’s assisted and insured housing programs to be open to all eligible individuals regardless of sexual orientation, gender identity, or marital status (see Memo, 2/3/12).
The Notice applies to all PIH programs administered by PHAs, their affiliates, instrumentalities, and mixed-finance owner-entities. The PIH programs covered are Public Housing, Housing Choice Vouchers, Project-Based Vouchers, and Moderate Rehabilitation programs. The Notice applies to PHAs under the Moving to Work demonstration and the Rental Assistance Demonstration, as well as to private owners that participate in housing programs funded under Section 8.
The Equal Access Rule clarified the term “family,” explicitly stating that it applies regardless of actual or perceived sexual orientation, gender identity, or marital status. Consequently, PHAs are required to review and update, if necessary, their public housing Admissions and Continued Occupancy Policy (ACOP) and voucher Administrative Plan to ensure consistency with the Equal Access Rule. In addition, the next Annual PHA Plan must include a statement in the section on eligibility, selection, and admissions that reflects the changed definition of family and the obligation to provide equal access regardless of sexual orientation, gender identity, or marital status.
The Notice reminds PHAs and owners that they are prohibited from asking about an applicant’s or current program participant’s sexual orientation or gender identity. However, the Equal Access Rule allows a PHA to ask an applicant’s or participant’s sex in order to determine the number of bedrooms for which a household may be eligible. In addition, PHAs must collect and report on a program participant’s sex through form HUD-50008. PHAs may maintain voluntary and anonymous reporting of sexual orientation or gender identity for compliance with data collection requirements by state and local governments or other federal assistance programs.
Examples of violations under the Equal Access Rule are given in the Notice, as are examples of actions that may violate both the Equal Access Rule and the Fair Housing Act. The latter does not include sexual orientation, gender identity, or marital status as protected classes. The Notice points out, however, that complaints involving lesbian, gay, bi-sexual, or transgender people may raise claims covered by one or more of the Fair Housing Act’s protected classes. For example, courts have recognized the Fair Housing Act’s prohibition against discrimination because of sex includes discrimination based on non-conformance with sex stereotypes.
Notice PIH 2014-20 is at http://1.usa.gov/1CmgE01.