HUD’s Office of Fair Housing and Equal Opportunity (FHEO) published a proposed regulation on January 24, 2011 intended to ensure that all of HUD’s core programs are open to everyone regardless of sexual orientation or gender identity (see Memo, 1/21). NLIHC participated with members of the Housing Justice Network, an informal network of legal services and affordable housing advocates, in writing a joint response. The letter stated that the proposed regulations would be an important element in countering discrimination against LGBTQ (Lesbian, Gay, Bi-Sexual, Transgender, and Queer) people.
Advocates supported the primary feature of the proposed rule, prohibiting inquiries about the sexual orientation or gender identity of an applicant for or occupant of HUD-assisted housing. This prohibition would apply to owners or administrators of HUD-assisted or HUD-insured housing, lenders in an FHA mortgage insurance program, and any other recipient or subrecipient of HUD funds.
The comment letter notes, however, that the practical effect of this provision might be limited to people who choose to and are able to hide their sexual orientation or gender identity. Same-sex couples and families or transgender people might be identified as such without anyone inquiring. Therefore, the letter suggests stronger language: “Any decision related to any aspect of the tenancy of an individual or family must be made without regard to one’s actual or perceived sexual orientation or gender identity.” The intent is to proscribe a housing provider from using perceived or actual sexual orientation or gender identity to deny tenancy, harass a tenant, evict a tenant, or terminate a voucher.
Advocates are also pleased that HUD will change the definition of family to ensure that it is inclusive of same-sex couples and other LGBTQ families. Three technical wording improvements are offered to better ensure HUD’s stated intent. For example, the letter recommends that the definition of “family composition” in the Housing Choice Voucher program explicitly state that Public Housing Authorities do not have the discretion to define family groupings in a way that excludes LGBTQ individuals or groups.
Data about housing access and discrimination is vital to demonstrate the extent of the problem, identify seemingly neutral policies that have a disparate impact, and attract resources to combat these problems. Therefore, advocates urge HUD to create a data collection system to provide information that will aid in identifying and combating discrimination while also protecting the privacy of those who do not feel safe disclosing their sexual orientation or gender identity.
The letter recommends requiring HUD-assisted housing providers to affirmatively market to the LGBTQ population. Affirmative Marketing Plan forms used by the Office of Housing for its multifamily programs should be modified to include as a target category people who identify as or are perceived to be LGBTQ. Similar forms should be created for the other HUD programs. Examples of additional affirmative marketing activities include collaborating with local LGBTQ centers to reach out to their members and participants, advertising in LGBTQ media, and developing comprehensive outreach plans and goals.
Prohibiting housing providers from discriminating does not sufficiently protect LGBTQ people if the rules do not provide recourse for violation of these regulations. Therefore, the rules should clearly provide for enforcement provisions explicitly stating that HUD may sanction, suspend, debar, or seek civil penalties against HUD-assisted housing providers who violate these regulations.
Finally, a complaint system should be established that would include: a central intake to direct complaints to the appropriate program staff, a form similar to the existing Fair Housing Act complaint Form 903, and a telephone number for complaints.