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Disclaimer

The U.S. Department of Housing and Urban Development (“HUD”), charged with ensuring equal access to publicly-funded housing programs and administering the Fair Housing Act, a federal law prohibiting discrimination in housing, proudly proclaims on its website: “Fair Housing – It’s Your Right.”

But for many lesbian, gay, bisexual and transgender (“LGBT”) individuals, discrimination in housing is a barrier to finding safe and affordable shelter.

In a study conducted by Michigan fair housing centers, 32 out of 120 fair housing tests found disparate treatment of lesbian and gay home seekers, as compared to testers posing as heterosexual home seekers.[1] The study compared the treatment of test teams posing as same-sex couples to testers posing as heterosexual married couples. Same-sex testers were instructed to introduce themselves as “life partners.” The unequal treatment experienced by gay and lesbian testers included a higher quoted monthly rent and the denial of a housing application outright. Another study surveyed more than 6,000 transgender individuals and found 19% reported having been refused a home or apartment and 11% reported being evicted because of their gender identity/expression.[2]

Economic challenges also pose a challenge for seniors in access to affordable housing. According to a 2011 AARP housing report, “[o]lder homeowners and renters face greater affordability issues, and many low-income households face more unsustainable housing costs since the housing crisis and recession that began in 2007.”[3]

Faced with both economic challenges and discriminatory treatment in equal access to housing, LGBT older adults need to know what legal rights are available to ensure protection against unfair housing practices.

Twenty-one states and more than a hundred municipalities have enacted LGBT inclusive non-discrimination laws and offer protections against housing discrimination.[4] Two federal laws, the Fair Housing Act and the Federal Nursing Home Reform Act, also offer protections against discrimination based on sexual orientation and gender identity, giving even those LGBT older adults whose local governments lack non-discrimination laws potential legal rights. As federal laws, they extend protections to individuals in all 50 states, the District of Columbia and U.S territories.

The Fair Housing Act (“FHA”) is the only federal law that prohibits discrimination in most private and public housing on the basis of race, color, national origin, religion, gender, disability and familial status. There are no explicit protections based on sexual orientation and gender identity/expression for LGBT individuals under the FHA. Despite this glaring gap in federal law, LGBT individuals may have protections under the FHA for discrimination based on gender and disability.

To clarify how the FHA can protect LGBT individuals, HUD recently issued a new policy stating that gender identity discrimination qualifies as gender discrimination under the FHA[5].

How does the FHA protect LGBT older adults?

• Gender-based discrimination is prohibited. For example, a landlord who discriminates against a female prospective tenant because she wears masculine clothes and engages in other physical expressions that are stereotypically male may engage in discrimination based on gender in violation of the FHA.
• Disability discrimination is prohibited. For example, a landlord who evicts a gay man because the landlord believes the tenant has HIV and will infect other tenants may engage in disability discrimination in violation of the FHA.?

One of the major shortcomings of the Fair Housing Act is that fails to prohibit discrimination based on sexual orientation. If a lesbian couple, for example, applies for an apartment and the landlord denies their application specifically claiming that the landlord does not rent to gay couples, there is no legal recourse under the FHA. The couple would have to rely on their local LGBT non-discrimination law, if any, to ensure that their rights are protected.

LGBT older adults, however, should not be dissuaded from contacting HUD if they experience housing discrimination. It is important that HUD remain aware of the very real problem of LGBT discrimination, and that the voices of LGBT older adults be heard. The HUD policy confirmed that the agency will jointly investigate or refer discrimination matters to those state, district and local governments that have LGBT non-discrimination protections. And HUD is conducting a national study of discrimination against members of the LGBT community in the rental and sale of housing.

What Types of Discriminatory Conduct Are Prohibited Under the FHA?

In the Sale and Rental of Housing: No one may take any of the following actions based on race, color, national origin, religion, gender, familial status or handicap (disability):

• Refuse to rent or sell housing
• Refuse to negotiate for housing
• Make housing unavailable
• Deny a dwelling
• Set different terms, conditions or privileges for sale or rental of a dwelling
• Provide different housing services or facilities
• Falsely deny that housing is available for inspection, sale, or rental
• For profit, persuade owners to sell or rent (blockbusting)
• Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing

In Mortgage Lending: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap (disability):

• Refuse to make a mortgage loan
• Refuse to provide information regarding loans
• Impose different terms or conditions on a loan, such as different interest rates, points or fees
• Discriminate in appraising property
• Refuse to purchase a loan
• Set different terms or conditions for purchasing a loan

For additional protections under the Fair Housing Act visit the HUD website.

Federal Nursing Home Reform Act

For LGBT older adults who enter a nursing facility, whether on a temporary or more prolonged basis, the Federal Nursing Home Reform Act (“FNHRA” or “Act”) may offer protections against discrimination, neglect and abuse based on sexual orientation and/or gender identity. The FNHRA, and its implementing regulations, include a variety of “Quality of Life” and “residents’ rights” requirements that afford residents of nursing homes, rehabilitation, and health-related care and services facilities – that receive Medicare and Medicaid funding – the right to control significant aspects of their lives.

Examples of quality of life requirements include the right to “free choice,” which consists of the right to choose a physician and to be informed about care and treatment and the right to “be free from interference, coercion, discrimination, and reprisal . . . in exercising” rights under the Act. Another is the right to “reasonable accommodation of individual needs and preferences.” Other rights spelled out in the FNHRA guidelines are the rights to privacy and dignity.

The FNHRA does not limit its protections to a specific class of individuals, making the federal law particularly relevant to LGBT nursing facility residents. By focusing on the health and welfare of residents, rather than on a protected characteristic such as sex or race, the FNHRA does not require the individual to prove the underlying motivation for the discriminatory treatment, just that the action is a violation of the statute. The FNHRA is a potentially strong tool to combat discrimination, abuse and neglect against LGBT older adults in long-term care facilities.

Another federal development in housing rights is a the recently enacted HUD rule prohibiting discrimination based on sexual orientation and gender identity in federally funded and federally regulated housing programs. The administration reviewed more than 350 comments on the proposed rule, which went into effect on March 5, 2012.[6]

The federal rule applies to HUD rental assistance and home ownership programs, which include the Federal Housing Administration mortgage insurance programs, community development programs and public and assisted housing programs, such as the Section 8 Housing Choice Voucher program.

Highlights of the federal rule include the following:

• Lenders are prohibited from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for Federal Housing Administration-insured mortgage financing.
• The definition of "family" is clarified to include LGBT family members. Families who are otherwise eligible for HUD programs "may not be excluded because one or more members of the family may be an LGBT individual or have an LGBT relationship or be perceived to be such an individual or in such relationship."
• Owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, are prohibited "from inquiring about the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter or owner-occupied."

What can an LGBT older adult do if he/she experiences housing discrimination or discrimination in a long-term care facility?

• If you are the victim of housing discrimination you (or someone on your behalf) have a right to file a Complaint with HUD at no cost. Fair housing complaints can be filed with HUD by telephone (1-800-669-9777), mail, or via the Internet. Follow this link to fill out a fair housing complaint form online.
• If you, or someone you care, about has been discriminated against, or feels threatened or unsafe because of sexual orientation or gender identity in the care of a nursing facility you may file a complaint either verbally or in writing, which may remain anonymous, with your State’s health department. To find your State health department go to www.medicare.gov and search under “Search Tools,” select “Find Helpful Phone Numbers and Websites.”
• You may also file a lawsuit in Federal District Court or State Court.

FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, 19th Floor, New York, NY 10005. If you feel you have experienced discrimination, call our Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.

Additional Resources

• SAGE (Services & Advocacy for Gay, Lesbian, Bisexual and Transgender Elders), 305 7th Avenue, 6th Floor, New York, NY 10001, (212) 741-2247. www.sageusa.org

• Equal Rights Center