We know that this article is long. However, we feel it is critical that you become familiar with the LGBT Rule. We suggest you print off the article and share it with your owners and staff. You should note that the LGBT Rule is not a new fair housing law but is a way for HUD to protect a class of people without Congress enacting new laws. The consequences for violation of the LGBT Rule is not a fair housing claim but a potential loss of HUD benefits. If you have any questions, please contact my office at desimmonsar@netscape.net or 501-374-5417.
The goal of the LGBT Rule is to open access to housing for LGBT individuals and families in four ways. First, an equal access provision makes it clear that housing that is financed or insured by HUD must be made available without regard to actual or perceived sexual orientation, gender identity, or marital status. Second, owners and operators of HUD-funded housing, or housing whose financing HUD insures, are prohibited from inquiring about an applicant’s sexual orientation or gender identity or denying housing on that basis. Third, the term “family” includes LGBT individuals and couples as eligible beneficiaries of HUD’s public housing and voucher programs. Finally, the rule prohibits sexual orientation and gender identity from being part of any lending decision when it comes to getting an FHA-insured mortgage.
The LGBT Rule applies to properties receiving Section 8 funds, both property based and tenant based, as well as public housing programs, FHA insured mortgages, and Community Development Block Grants. The major provisions of the LGBT Rule include:
1. Requires entities assisted by HUD or insured by FHA to make housing available without regard to actual or perceived sexual orientation, gender identity, or marital status;
2. Clarifies the definition of “family” and “household,” which identifies who is eligible for HUD’s core programs and includes persons regardless of actual or perceived sexual orientation, gender identity, or marital status;
3. Prohibits HUD-assisted and HUD-insured entities from inquiring about an applicant’s or occupant’s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available; and
4. Prohibits FHA-approved lenders from basing eligibility determinations for FHA-insured loans on actual or perceived sexual orientation or gender identity.
The LGBT Rule provides that a determination of eligibility for housing that is assisted by HUD or subject to a mortgage insured by the Federal Housing Administration shall be made in accordance with the eligibility requirements provided for such program by HUD, and such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status. No owner or administrator of HUD-assisted or HUD-insured housing, approved lender in an FHA mortgage insurance program, nor any (or any other) recipient or subrecipient of HUD funds may inquire about the sexual orientation or gender identity of an applicant for, or occupant of, HUD-assisted housing or housing whose financing is insured by HUD, whether renter- or owner-occupied, for the purpose of determining eligibility for the housing or otherwise making such housing available. This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any individual from voluntarily self-identifying sexual orientation or gender identity. This prohibition on inquiries does not prohibit lawful inquiries of an applicant or occupant’s sex where the housing provided or to be provided to the individual is temporary, emergency shelter that involves the sharing of sleeping areas or bathrooms, or inquiries made for the purpose of determining the number of bedrooms to which a household may be entitled.
The LGBT Rule also requires the grantees of public funds to comply with state and local laws that prohibit LGBT discrimination. The definitions in the LGBT Rule represent the most significant changes for multi-family housing and apply to all HUD programs including Section 8 and public housing assistance programs and properties with mortgages insured by FHA. Below, we have listed the new definitions for the LGBT Rule.
The term, “disabled family,” means a family whose head (including co-head), spouse, or sole member is a person with a disability. It may include two or more persons with disabilities living together, or one or more persons with disabilities living with one or more live-in aides. “Elderly family,” means a family whose head (including co-head), spouse, or sole member is a person who is at least 62 years of age. It may include two or more persons who are at least 62 years of age living together, or one or more persons who are at least 62 years of age living with one or more live-in aides. “Family,” includes, but is not limited to, the following, regardless of actual or perceived sexual orientation, gender identity, or marital status: (1) A single person, who may be an elderly person, displaced person, disabled person, near-elderly person, or any other single person; or (2) A group of persons residing together, and such group includes, but is not limited to: (i) A family with or without children (a child who is temporarily away from the home because of placement in fostercare is considered a member of the family); (ii) An elderly family; (iii) A near-elderly family; (iv) A disabled family; (v) A displaced family; and (vi) The remaining member of a tenant family. “Gender identity,” means actual or perceived gender-related characteristics. “Household,” means all persons occupying a housing unit. The occupants may be a family, as defined above by HUD; two or more families living together; or any other group of related or unrelated persons who share living arrangements, regardless of actual or perceived, sexual orientation, gender identity, or marital status. “Near-elderly family,” means a family whose head (including co-head), spouse, or sole member is a person who is at least 50 years of age but below the age of 62; or two or more persons, who are at least 50 years of age but below the age of 62, living together; or one or more persons who are at least 50 years of age but below the age of 62, living with one or more live-in aides. “Sexual orientation,” means homosexuality, heterosexuality, or bisexuality.
With the enactment of the LGBT Rule, HUD is now proposing to create a new protected class in civil rights laws. HUD is merely attempting to address equal access to housing issues through housing program requirements, which it has legal authority to do. The affect of the LGBT Rule is that local housing authorities, homeless shelters or other housing providers that receive federal financial assistance of any kind will not be able to exclude same sex partners or otherwise eligible LGBT family members from their HUD funded programs. HUD intends to conduct a study and testing in rental markets to measure discrimination faced by same sex couples. HUD intends to conduct 5,000 housing tests nationwide. A key question to ask a tenant by a housing provider if your unsure as to what sex to classify them as, “Where do you feel most comfortable or safest because of your sexual orientation, gender identity or marital direction?” Because of the broad changes under the LGBT Rules, there will be conflicts with other laws. For example the Violence Against Women Act (VAWA) is a program to provide housing to women subjected to violence. Under VAWA, the housing provider is required to use a birth certificate for third party verification to determine if a potential participant to be considered a woman. The LGBT Rule does not provide for a minimum number of housing units in order for a landlord to qualify. Therefore, the LGBT Rule applies to all landlords, no matter how many units they own, that accept any kind of federal assistance. A landlord may still inquire as to the gender of an applicant but the federal assistance may no longer discriminate under the LGBT Rules. If a property receives federal assistance, it can no longer prohibit unmarried people from living together or consider marital status as a consideration for housing.
Normally, a property that was built under the Section 42 Tax Credit Program is not considered in receipt of federal funding, however, HUD rules require that a tax credit property accept Section 8 tenant based funds. If a landlord accepts Section 8 funds, it must comply with the LGBT Rule. Therefore, if you are a tax credit property you will have to follow the LGBT Rule.
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