Fair Housing Hot Topics: As Our World Changes, So Does Application of the Laws
As the world turns, new emphasis is being placed on Fair Housing laws, and apartment owners and operators must stay on top of their games, says attorney Scott Moore, a veteran lawyer who specializes in the housing industry.
Moore stated that laws continue to touch everything housing providers do and more. And it’s not just those who provide government assisted housing that have to be careful.
“We’re seeing more and more conventional housing providers receiving complaints,” says Moore, who has spent more than 14 years arguing Fair Housing cases. “There is increased enforcement by the federal government.”
Moore isn’t sure why the pendulum of complaints seemingly is shifting to conventional but says recent activity suggests that all landlords need to be aware of changes in the application of Fair Housing laws.
Sexual orientation, gender identity discrimination has become a ‘big issue’
Moore said sexual orientation and gender identity are getting more and more attention since the Department of Housing and Urban Development (HUD) adopted regulations in early 2012, and built upon in 2016, that prohibit discrimination by owners and operators of HUD-assisted housing or housing with financing insured by HUD. Under these regulations, Moore says that housing must be made available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter- or owner-occupied.
According to Moore, HUD has also taken the position that sexual orientation and gender identity discrimination could be covered by the Fair Housing Act.
“It’s a big issue, a very big issue,” Moore said. “A big issue not only with HUD, but from the private enforcement perspective.”
While sexual orientation and gender are not terms that appear under Fair Housing Act rules, some governmental agencies and Fair Housing groups have interpreted the FHA’s position on sexual discrimination to include protection from gender stereotypes. He also said there are state and local laws that prohibit discrimination on the basis of sexual orientation and gender identity.
One challenging area for legal interpretation is properties – including student housing – that have common restrooms. Moore said individuals have the right to identify as a gender which may be different than their birth certificate. Denying someone access to a common restroom or shower based on gender identity is problematic.
HUD regulations have been interpreted – based on resident privacy – to enable affordable housing providers to ask questions about sexual orientation and gender identity if the housing at issue has shared bathing facilities. This has included permitting providers to adopt rules restricting those who fall under sexual orientation and gender identity conditions to only use shared bathing facilities when nobody else is present.
Providers risk sliding down a slippery slope, however, by enforcing discriminatory practices similar to those prohibited against other FHA classes relating to race, color, national origin, sex, religion, familial status and disability.