Fair Housing Act Expanded to Include Sexual Orientation and Gender Identity

The federal Fair Housing Act prohibits discrimination in housing due to a person based on the person’s membership in specific “protected classes.” Protected classes to date have included race, color, religion, national origin, sex, familial status, and disability. In short, the FHA is designed to protect people from discrimination when they are buying a home, renting, obtaining a mortgage, seeking housing assistance, or engaging in other housing-related activities, which can include actions of homeowner and condominium associations. (A list of examples of housing discrimination can be found at HUD’s Housing Discrimination under the Fair Housing Act page.)

Last week (February 11, 2021), the U.S. Department of Housing and Urban Development (HUD) announced that it interprets the Act to also bar discrimination on the basis of sexual orientation and gender identity. HUD also directed HUD offices and recipients of HUD funds to enforce the Act accordingly.

According to Jeanine M. Worden, Acting Assistant Secretary of HUD’s Office of Fair Housing and Equal Opportunity:

Housing discrimination on the basis of sexual orientation and gender identity demands urgent enforcement action. That is why HUD, under the Biden Administration, will fully enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity or sexual orientation. Every person should be able to secure a roof over their head free from discrimination, and the action we are taking today will move us closer to that goal.

The HUD memorandum announcing the new policy directs the following:

    • HUD will accept and investigate complaints of sex discrimination, including discrimination because of gender identity or sexual orientation.
    • HUD will conduct all activities involving the application, interpretation, and enforcement of the FHA’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation and gender identity.
    • State and local jurisdictions funded by HUD’s Fair Housing Assistance Program that enforce the FHA will be required to administer those laws to prohibit discrimination because of gender identity and sexual orientation.
    • Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program must carry out their funded activities to prevent and combat discrimination because of sexual orientation and gender identity.
    • Regional Offices, agencies, and grantees are instructed to review records of allegations received since January 20, 2020, and notify persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional.

HUD’s press release on the new memorandum can be found at “HUD To Enforce Fair Housing Act to Prohibit Discrimination on the Basis of Sexual Orientation and Gender Identity.”

So how do these changes impact HOA and condo associations? Like most things community association related, facts matter. No short blog like this can give legal advice for a specific situation–so contact one of our attorneys with any questions. The quick takeaway is that no association (or other housing provider) should discriminate on the basis of sexual orientation or gender identity, just as with the FHA’s other “protected classes.” Don’t use association rules to target or treat those in such classes differently than others. Stick with the Golden Rule: “Treat others as you would like others to treat you.”  

As more information on the new order is released, we will share additional details.


For any questions about a North or South Carolina HOA or condo association,
contact one of the community association attorneys at any of our four offices.