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.