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THE LGBTQ SEESAW: BIDEN RESTORES LGBT HOUSING PROTECTIONS THAT TRUMP DENIED

QUESTION:  I recently moved up north to help take care of my mother, who is frail but treasures her independence. To allow her space while being available to take her to her medical appointments, help with shopping and chores, I decided to rent an apartment. I found a place near my mom’s that was decent and within my price range, but when I went for an in-person tour with the understanding that I would sign a lease if the place was acceptable, things went downhill. Shortly after I met with the manager, he looked through some papers and then apologized, saying his co-manager had just leased the apartment I had come to see, and there were no other one-bedroom units available.. As I was leaving, I heard him say something about “f—— dykes.” It was clear to me that the manager had decided I’m a lesbian, probably just because I have short hair and don’t wear any makeup. Whether I am a lesbian or not, isn’t it illegal to discriminate based on sexual orientation?

ANSWER:     Last year, we would have had to say, “it depends on where you live.” Some cities in Michigan, like Detroit, Ann Arbor, Mt. Pleasant and Grand Rapids, made it illegal to discriminate in housing on the basis of sexual orientation – but laws in other cities and towns around the state allowed such discrimination. And, under then-current federal law, LGBT protections under the Fair Housing Act, the law that bars discrimination in housing and mortgages, were not clear.

Under former president Donald Trump, the Department of Justice read the Fair Housing Act’s prohibition against discrimination “because of sex” as banning only discrimination on the basis of biological sex. According to the DOJ, the law provided no protection from discrimination based on sexual orientation or gender identity. That reading of the phrase seems to be in conflict with the Supreme Court’s June decision in Bostock v Clayton County which held – at least in the context of cases involving employment under Title VII of the Civil Rights Act – that “because of sex” does include protections for LGBT people. Last summer, the Trump Administration proposed a rule that, among other things, would have limited access to homeless shelters for homeless transgender people based on their biological gender.

But a lot has changed since November. And the Trump-era interpretation is kaput.

One of President Joe Biden’s first actions as president on January 20 was to sign Executive Order 13988, which states that laws that bar sex discrimination, including Title IX (education), the Fair Housing Act and section 412 of the Immigration and Nationality Act, “prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.” (If the laws clearly stated they did not provide such protection, they could not be changed by executive order but would require Congressional action.)

On Feb. 11, the Department of Housing and Urban Development, which enforces the Fair Housing Act, announced it would begin enforcing the FHA’s prohibitions against discrimination “because of sex” in accord with Bostock v Clayton County and the new Executive Order. HUD will start reviewing all cases filed since Jan. 20, 2020, in which sexual orientation or gender identity discrimination was alleged.

So, to get to your question: Yes, under the FHA it is illegal to discriminate against a prospective tenant on the basis of his or her sex, sexual orientation or gender identity – or race, color, national origin, religion, familial status or disability.

If you believe your rights have been violated, you can file a complaint with HUD. You may also wish to contact an attorney who could try to help you work things out with the owner of the apartment complex.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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[email protected]
www.gwinnlegal.com