Jul 30, 2013


Thiago Derucio and his partner were denied an apartment because they are gay. They responded to an online ad for housing but were turned down once their sexual orientation was revealed. Their experience is not unique. Same-sex couples often have to pay more in taxes when they buy or sell a home, or transfer ownership interest, than married heterosexual couples do. In other instances, they are denied housing loans. This is mainly because; there is no national law that protects against sexual orientation discrimination in housing. The federal Fair Housing Act as Amended (FHAA) prohibits discrimination in housing on the basis of race, color, national origin, religion, sex, familial status or handicap but not sexual orientation and gender identity. A patchwork of state and local laws offers some of the much needed protections to gay and transgender people. But the lack of a comprehensive federal law means that people like Thiago and his partner, do not have equal access to housing. However, the recent Supreme Court ruling, striking down the Defense of Marriage Act (DOMA) gives some indication that discrimination in housing based on sexual orientation may soon be a thing of the past.

The Court struck down the federal law mainly because it denies same-sex couples the equal liberty guaranteed by the Fifth Amendment. The decision basically holds that persons of the same sex who are legally married under State law may not be deprived of the federal benefits that are provided to married couples of the opposite sex. This decision will have far-reaching implications for same sex couples in areas like bankruptcy, federal employee benefits, the Family Medical Leave Act, Immigration, Medicaid, Medicare, military spousal benefits, private employment benefits, Social Security, SSI, taxes and hopefully in fair housing.

The Court’s decision could provide the needed impetus for a federal rule prohibiting discrimination on the basis of sexual orientation in the rental and ownership of housing. This is likely, considering HUD’s 2012 adoption of the Equal Access Rule that prohibits lenders from discriminating on the basis of actual or perceived sexual orientation, marital status or gender identity in granting mortgages insured by Federal Housing Administration (FHA). A recent settlement reached between HUD and Bank of America (BOA) in regards to an anti-gay mortgage discrimination complaint provides an indication that such a rule will be enforced.

On the heels of the Supreme Court’s rulings on marriage equality, U.S. Sen. Sherrod Brown recently introduced the Housing Opportunities Made Equal (HOME) Act of 2013, which would for the first time bar discrimination against LGBT Americans when selling or renting property. The Act would add sexual orientation, gender identity, marital status and source of income to those FHA protected classes, but it has yet to be introduced to Congress.

A new study by HUD found that same-sex couples were "significantly less likely than heterosexual couples to get favorable responses to e-mail inquiries about electronically advertised rental housing." In fact, heterosexual couples were favored over gay male couples in 15.9 percent of the tests, and over lesbian couples in 15.6 percent. We can only hope that the recent Supreme Court decision will make such forms of discrimination illegal and allow people like Thiago Derucio and his partner equal access to housing.

Jul 3, 2013

The Fair Housing Act covers University Housing…

As often stated on this blog, the Fair Housing Act was enacted to protect certain groups of people against discrimination in housing. The Act extends this protection to any dwelling. The term “dwelling” has been broadly construed by the courts and can include any place where a person resides. “Dwellings” under the Act has been held to include vacation homes, residential hotels, migrant housing, dormitories, nursing homes, group homes, and homeless shelters where persons reside for extended periods of time.  Jails, motels and detention or correctional facilities do not qualify as dwellings under the Act, thus far. In an interesting housing case against the University of Nebraska at Kearney (UNK), the University argued that, university housing does not qualify as a dwelling under the Fair Housing Act and compare its student housing to a jail!
The U.S. Justice Department sued the university last year, saying it unlawfully denied former UNK student Brittany Hamilton the chance to keep her 4-pound miniature pinscher named Butch in her university-owned apartment a mile off campus. Her dog helps Brittany cope with depression and anxiety. The university's policy bans pets other than fish from its housing unless the student has a disability that requires a service animal or works as a hall director. The Justice Department lawsuit says Hamilton could not afford other housing options in or around Kearney and needed the dog to focus on her school work. The dog was prescribed to help her handle anxiety attacks that made it difficult to sleep and breathe.
The case hinged on whether university housing was a “dwelling.” The university argued that it was not, comparing university housing to a hotel, or, perhaps most unexpectedly, a jail. Neither is considered a dwelling under the Fair Housing Act. Scott Moore, an attorney who represents UNK, said many first-year students have to live in university housing, are assigned rooms and in some cases roommates, and have to follow certain rules and restrictions. He argued the purpose of university housing is educational, not to provide a residence.
However, the U.S. District Court rejected the argument that, because students live in an environment conducive to learning, it changes the nature of the place "from a residence to something akin to a correctional center." He noted, "While housing may have more rules than the average off-campus apartment, it is no more restrictive than many other places that people call home.” He said students who live in university housing eat meals, wash laundry, do schoolwork, socialize and sleep there, "just as people ordinarily do in the places they call home."
Judge Gerrard rejected Moore's argument that students are transient visitors who don't intend to stay long. "Simply put, students live in university housing for a significant time period and while they do, they treat it like home," Judge Gerrard wrote. Judge Gerrard ruled that a university-owned apartment complex is subject to the Fair Housing Act. UNK has stated that it is reviewing the ruling before making a decision about an appeal to the Eighth Circuit Court of Appeals.
The UNK decision does not only reinforce the rights of people living with disabilities to have equal access to housing as other people, but it also emphasizes the fact that the Fair Housing Act is broadly interpreted by the courts to protect against discrimination in housing.