President Joe Biden‘s first days in office have been pretty hectic, so it would be easy to miss that one of the Democrat’s top priorities is ending discrimination based on sexual orientation or transgender identity.
One of the executive orders that Biden issued on Day 1 of his presidency will ban most discrimination at the federal level against members of the lesbian, gay, bisexual, transgender, and queer community. In terms of housing, this means it would be illegal for landlords, real estate agents, home sellers, or mortgage lenders to refuse to rent to, sell to, or work with LGBTQ people. Those who break the law could wind up in court and face hefty fines.
“This is a significant step, the likes of which we’ve never seen, to address discrimination against the LGBT community,” says Luis Vasquez, a legal scholar at the Williams Institute, which operates out of the law school at the University of California, Los Angeles. “Discrimination against LGBT people is persistent. It’s something that’s definitely still prevalent here in 2021.”
Although same-sex marriage was legalized across the U.S. in 2015, people who identify as LGBTQ are not protected under the Fair Housing Act. Just 23 states, Washington, DC, and certain cities protect gay couples seeking homes. Only 21 states ban housing discrimination against transgender people.
“People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination,” states the order. “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
The order clarifies that sexual orientation and gender identity fall under the federal government’s definition of “sex.” Historically, sex typically referred to someone being male or female (as identified at birth), although previous lawsuits had challenged this. But in a ruling last summer, the U.S. Supreme Court confirmed that the definition includes sexuality and gender identity.
Biden is now requiring federal agencies to do a deep dive into their policies, programs, regulations, guidance, and past executive orders, and basically clean house. The agencies are to consider suspensions or revisions to ensure that anything that includes “sex” uses the Supreme Court’s definition covering the LGBTQ community. Anything biased is expected to be thrown out.
The new president also issued an executive order this week to eliminate racially biased housing and lending policies. This is a big change from the previous four years.
“During the course of the Trump administration there was a significant rollback of a number of civil rights protections,” says Claudia Aranda, senior research associate at the Urban Institute, a nonpartisan research group based in Washington, DC.
Currently, only seven groups are protected under the Fair Housing Act of 1968. The original act made it illegal to deny housing or discriminate against folks based only on race, color, religion, and national origin. Six years later, sex was added to the list, and in 1988 it was expanded to include disability and familial status (such as having young children).
The executive order will likely lead to homeless transgender people being placed in shelters according to the gender they identify with, rather than being forced into one based on the sex assigned to them at birth. If such a situation occurs, they would have legal recourse.
“It’s important that these activities be illegal because they do, in fact, cause harm,” says Aaron Tax, director of advocacy for SAGE, a national advocacy group for LGBTQ seniors. “It sends a message to LGBT [people] across the country … that they have a right as much as anyone else to find housing. If they do face discrimination, the federal government has their back.”
While the federal protections are a huge step, individual state and city laws are still important as well.
It’s often cheaper and faster to take a fair housing complaint before a state court, says Sarah Warbelow, legal director for Human Rights Campaign, a national LGBTQ advocacy organization.
A local law may provide more coverage than the federal one, as well. For example, the federal law doesn’t pertain to landlords who rent out fewer than four units in a property where they also live. Some city and state ordinances may include those renters, allowing them to bring lawsuits.
Even after federal agencies update their regulations and policies, change isn’t expected to happen overnight. But it will go a long way to ensuring a more equitable environment, says Jeff Berger, president of the National Association of Gay and Lesbian Real Estate Professionals.
“Since same-sex marriage passed in the Supreme Court, this may be one of the most important [actions] that affects the LGBT community,” says Berger. “People who don’t experience [the inequity] really don’t believe it would happen in today’s era. … [But] we’re living in a polarized time. Not everyone in the country feels the LGBT community should have equal rights.”
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