HUD LGBT Rule Webinar

Hello and welcome. I'm john.
It is an honor to be your assistant
secretary for fair housing and equal opportunity.
We're here today to talk to you about HUD's new rule, equal
access to housing and HUD programs, regardless of sexual
orientation or gender identity. This rule is a brake-through for
equality for the five and a half million people living in public
housing or who have a HUD voucher.
The estimated one-third of new first time home buyers who have
an FHA insured loan, and for all Americans served by HUD, as the
nation's housing agency, HUD has the unique charge to promote the
federal goal of providing decent housing and a suitable living
environment for all. Moreover, secretary Donovan,
myself, and all our staff work for our policies and programs to
serve as models of equal housing opportunity.
Through our new rule, HUD implements policy to ensure that
its core program, including section 8, public housing,
community development block grant, housing opportunities for
persons with aids and supportive housing for the elderly and
persons with disabilities are open to all eligible persons,
regardless of sexual orientation, gender identity or
marital status. The rule also protects people
seeking FHA insured loans from being singled out and denied
because of their sexual orientation or gender identity.
This rule was published as final in the federal register on
February 3rd and goes into effect on March 5th, 2012.
Your trainers today will be Ken Carol and Celia Carpentier from
fair housing equal opportunity, Mary McFadden from the office of
general counsel anded to Thomas -- Todd Thomas from HUD's
office. They and others were
instrumental in the development of the rule and we thank them.
Ken, Celia, Mary and Todd will provide specificity on the rule
provision, give examples of rule violations and answer frequently
asked questions about the rule. We will also provide contact
information of where someone would go for help when the rule
was being violated. Hi.
My name is Ken Carol. I'm from HUD's office of fair
housing and equal opportunity. I am joined today by Marion
McFaden from our office of general counsel, Todd Thomas
from our office of public and Indian housing and Celia, also
from the office of fair housing and equal opportunity.
As assistant secretary said, we are here today to talk about
HUD's new equal access rule. On February 3rd, 2012, HUD
published a final rule in the federal register entitled equal
access to housing and HUD programs regardless of sexual
orientation or gender identity, which we are calling the LGBT
rule. LGBT stands for lesbian, gay,
bisexual and transgender. While not in its title, the rule
also requires that equal access to housing in HUD programs be
provided regardless of marital status.
For those of you unfamiliar with the rule-making process, federal
agencies implement and enforce federal statutes and programs.
Federal agencies have the authority to draft, publish and
implement regulations, also known as rules, to further
explain and define a federal statute or program.
As required, HUD initially published the LGBT rule as a
proposed regulation on January 24th, 2011.
The proposed rule gave the public an opportunity to comment
until March 25th, 2011. We received about 370 public
comments. The majority of which were
supportive. We reviewed all of the comments,
made changes based on certain comments, and published the
final rule. The final rule will go into
effect 30 days from publication, which is March 5th, 2012.
Before we begin, it's important to note that the LGBT rule
covers HUD assisted and FHA insured housing providers, and
FHA lenders. A private housing provider that
does not receive HUD funds and does not have an FHA insured
loan is not subject to the regulation.
In addition, non-FHA lenders are not subject to the regulation.
Note, however, that other state, local, or federal civil rights
laws that prohibit discrimination may still apply
to such lenders and providers. First, it is important to make
sure everyone is on the same page and understands what LGBT
stands for. LGBT refers to the lesbian, gay,
bisexual and transgender community.
The LGBT community consists of persons of every race, religion,
national origin, and ability. LGBT is a convenient way to
incorporate two distinct issues -- sexual orientation,
which is what the L, G and B refer to, and gender identity,
which is what the T refers to in LGBT.
Generally, sectionual orientation refers to romantic
and/or emotional attraction, and where one falls with regard to
sexual orientation depends on the sex or gender of persons to
whom one is attracted. Gender identity on the other
hand refers to an individual's internal sense of being male or
female. Gender identity is usually
determined in the early years of an individual's life.
Transgender individuals are persons with a gender identity
that is different from the sex assigned to them at birth.
Transgender persons may be in various stages of transitioning
from male to female or female to male.
Again, it is important to remember that the term sexual
orientation and gender identity are distinct.
For example, a person who is transgender can have any sexual
orientation, just as a person who is not transgender can have
any sexual orientation. Now, as the backdrop to the LGBT
rule, HUD has been aware of evidence of LGBT housing
instability and housing discrimination.
And HUD's proposed rule, we cited two studies, a 2007 study
of housing discrimination based on sexual orientation conducted
by Michigan fair housing centers found a high rate of
differential treatment. Testers, that is, individuals
posed as same-sex couples seeking housing went to 120
Michigan housing providers. Testers posed as opposite sex
couples seeking housing, went to the same housing providers.
In 32 out of the 120 of those tests, the same-sex couple
testers received unfavorable treatment on issues such
as whether housing was available, the rent amount,
application fees and levels of encouragement as compared to
testers posed as heterosexual couple home seekers.
The same-sex couple testers were also subjected to offensive
comments. In addition, a recent survey of
6,450 transgender persons indicated significant levels of
housing instability among transgender persons.
19% reported having been refused a house or apartment because of
gender identity. 19% reported being homeless at
some point in their lives because of gender identity.
In addition, 55% of those trying to access shelters were
harassed. 29% were turned away from
shelters altogether, and 22% were sexually assaulted by
residents or staff of a shelter. These survey results are in a
publication entitled "in justice at every turn" compiled in 2011
by the national gay and lesbian task force and the national
center for transgender equality. So all of this information is of
great concern to HUD. As the nation's housing agency,
HUD is charged with the federal goal of providing decent housing
and a suitable living environment for all.
HUD believes we must do what we can to ensure that our programs
do not involve discrimination and that HUD policies and
programs serve as models for equal housing opportunity.
So the LGBT rule includes five main components.
First, it includes a definition of sexual orientation and gender
identity. Second, the rule includes a
general equal access provision that applies to HUD assisted and
insured housing. Third, the rule includes a
clarification of HUD's family definitions.
Fourth, the rule includes a prohibition of inquiries related
to sexual orientation and gender identity in certain contexts.
And fifth, the rule adds sexual orientation and gender identity
to an existing FHA equal access regulation.
I will now turn this over to HUD deputy assistant general counsel
Marian McFadden. Marian will review the rule's
legal authority, definitions, and its general equal access
provision. HUD's legal authority for the
rule comes from two goes of statutory authority,
identification of HUD's mission, and empowerment of the secretary
to make rules to support HUD's mission.
First the authority for mud's mission to create strong,
sustainable inclusive communities and quality
affordable homes for all, is found in numerous statutes in
which Congress mandates that HUD work to address the needs and
interests of the nation's communities and of the people
who live and work in them. Congress has repeatedly charged
the department with serving the existing housing needs of all
Americans. These powers arise in various
statutes, including section 2 of the housing act of 1949, in
which HUD's goal of ensuring decent housing and a suitable
living environment for all is rooted.
Also, section 7-D of the department of HUD act, which
specifically grants HUD rule-making authority.
Finally, in regard to the family definition, there is section 3
of the United States housing act of 1937 which provides a very
broad definition of family that HUD has authority to clarify by
regulation. Therefore, the implementation of
this rule which creates additional program requirements
to ensure equal access of all eligible families and
individuals works to further the mission of the agency and is
well supported by legal authority.
In terms of definitions, the rule defines sexual orientation
as homosexuality, heterosexuality or bisexuality.
This definition is already established in federal policy.
We borrowed it from the office of personnel management's
guidance, addressing sexual orientation in federal civilian
employment, a guide to employee rights.
Since heterosexuality is included in this definition,
it's not just LGBT people protected by the rule.
If for example a landlord wanted to prefer gay tenants over
straight ones because of a stereotype of gay men keeping
things clean that would be prohibited by the rule.
The rule defines gender identity as actual or perceived gender
related characteristics. In creating a definition for
this rule HUD adopted this definition from the Matthew
Shephard and James Jr. hate primes prevention act to protect
LGBT people from targeted violence.
The main substantive provision is in addition part five of the
HUD regulation. Part five includes general
requirements that cover all HUD programs, including civil rights
requirements. We added a provision in that
section, 24 CFR section 5.105 entitled equal access to HUD
assisted and insured housing. The provision states that the
termination of eligibility for housing that is assisted by HUD
or subject to a mortgage ensured by the Meryl housing -- federal
housing administration shall be made in accordance with the
program's eligibility requirements and such housing
made available without regard to actual or perceived gender
orientation, or marital status or gender identity.
This is the most significant addition to the final rule
as opposed to the proposed rule and is essentially a catch-all
provision ensuring that incidents of discrimination that
might not be covered by the other three provisions in the
LGBT rule will be covered here. An example of a violation of the
general equal access provision. A gay man applies for an
apartment in a home funded building.
The tenant lists his same-sex partner as his spouse and
co-tenant. The provider denies because it's
a gay couple and there are children within the building.
The landlord has violated the rule.
HUD funded housing is open to all applications.
Another example, a single woman lives alone in a public housing
unit. The building manager runs into
her at the corner store and sees that she's holding hands with a
woman. The next day, the building
manager tells her that she's being evicted for immoral
conduct. The manager may not evict the
woman. The prohibition on considering
someone's sexual orientation applies not just at the time of
initial application, but throughout the tenancy.
>> Thank you, Marian. You mentioned definitions.
I'm wondering if you could expand a little bit on whether
HUD's definition of gender identity includes persons who
are transgender. Okay.
Yes. Absolutely.
The final rule preamble makes clear that the definition of
gender identity is intended to cover actual or perceived
gender-related characteristics of all individuals, including
transgender people. HUD will interpret the
definition of gender identity to include the expression of gender
related characteristics that are not stereotypically associated
with a person's designated soak at birth.
Also, it's not necessary for someone to have surgery or be
prescribed hormone treatments to be covered by this rule.
Thank you. I'm also wondering if you could
give an example of when gender identity may not be
stereotypically associated with someone's designated soak at
birth. sex at birth.
One example is where a person who was designated male at birth
may identify as a woman later in life and wear clothing and hair
styles in a way that demonstrate a female identity.
Thank you, Marian. I will now turn this over to
Todd Thomas, who is a program analyst in HUD's office of
public and Indian housing. Todd will discuss the rule's
clarification of HUD's family definition.
The second main substantive provision of the rule is a
clarification of the definition of family and household in HUD
regulations. Historically, long before the
LGBT rule the term family and HUD programs that had broad
meaning. The LGBT rule is not changing
the definition of family, but merely adding language to
clarify that family includes persons regardless of their
actual perceived sexual orientation, gender identity or
marital status of family members.
The main program regulation we revised related family
definition is 24 CFR 5.403 wp. While this regulation only
defines family for the purpose of section 8, other HUD
regulatory definitions of family refer back to section 5.403 for
the family definition. In addition, in 24 CFR part 891,
which are HUD's regulations covering supportive housing for
elderly and persons with disabilities or 202 and 811
programs there was not reference to 5.403.
Accordingly, in the final rule, we added reference to the
inclusive family definition 5.403 in part 891.
Finally, we added LGBT inclusive language to the deaf nice of
household for community development block grants and 24
CFR section 5.703 and included the LGBT inclusive language to
the family definition in HOFWA. So HUD's core programs including
section 8, public housing, FHA, community development block
grants, 202, 811 programs are all covered by this
clarification. Even HUD housing programs that
don't include a definition of family are covered by other
provisions of this regulation. So how does the family
definition play out? In HUD program regulations, the
definition of family identifies in part who is eligible to stay
in the program. Explicitly stating that family
includes people regardless of marital status, sexual
orientation or gender identity means that local housing
authorities will not be able to exclude same-sex partners or
otherwise eligible LGBT family members from their HUD-funded
programs. Note that the family definition
clarification has no impact on other program eligibility
requirements. So an LGBT family like any other
family must meet all other program requirements like income
qualifications, annual certifications, and insuring
that all family members are named on the lease. Todd, can you describe
how the family definition sort of on
a practical level plays out in the section 8 and public housing
context? Yes.
In the public housing and section 8 context, local housing
authorities must adopt HUD's definition of family or a more
inclusive definition of family in regard to beneficiaries of
public housing program. That is, who's eligible far
housing voucher, who can live in public housing, who can be added
to a housing voucher and who would be considered as a family
member as opposed to an unauthorized guest in a public
housing unit. The third component of the
rule is related to inquiries. The LGBT rule prohibits
inquiries regarding the sexual orientation or gender identity
of an ably cant or occupant for the purpose of determining
eligibility or otherwise making hypothesessing available.
housing available. This prohibition has broad
coverage and applies to owners or administrators of of HUD
assisted or HUD insured housing, approved lenders in an FHA
mortgage insurance program or any other recipient or sub
recipient of HUD funds. So there are several caveats to
this provision. The inquiry prohibition does not
prohibit any individual from voluntarily self-identifying
sexual orientation of gender identity.
It does not prohibit lawful inquiries of an applicant or
occupant's sex where the housing provided or to to be provided is
temporary emergency shelter that involves the sharing of sleeping
areas or bathrooms. It does not prohibit lawful
inquiries of an applicant or occupant's sex made for the
purpose of determining the number of bedrooms to which the
household may be entitled. Certain HUD programs allow
families with two opposite sex children to have an extra
bedroom versus a family with two same-sex children.
As compared to the proposed rule, HUD fine tuned the inquiry
prohibition in the final rule to only prohibit asking sexual
orientation or gender identity for the purpose of determining
eligibility or otherwise making housing available.
An example, a petite woman walks into a rental office at a HUD
assisted apartment building. She's wearing traditionally
masculine clothing. The rental agent begins to ask
the woman questions about her daily activities and then asks
whether the woman is a less bean or transgender and says that
she's worried that other tenants may harass the applicant based
on her choice of dress and her life style.
Regardless of the rental agent's good intentions, she cannot
inquire about the applicant's sexual orientation or gender
identity turned rule. Another example, the
anticoordinater at an emergency shelter that has shared sleeping
and bathing facilities interviews a transgender woman
who has traditionally male facial hair and female clothing.
And says that the person cannot stay in the shelter because a
transgender woman staying in the woman's dorm would upset the
other women and be looking for trouble if staying in the men's
dorm. HUD left some discretion for
providers of HUD assistance in emergency shelters with shared
sleeping or bathing accommodations.
Here the coordinator can place the transgender woman mer this
the women's or the men's dorm or may make alternate arrangements
for her such as offering a hotel voucher, but may not turn the
person away because she's transgender.
I have a question. Related to the inquiry who hi
big are providers asking -- prohibited from asking when such
questions are pursuant to state, local or federal data collection
requirements? No.
The rule only prohibits asking sexual orientation or gender
identity for the purpose of determining eligibility or
otherwise making housing available.
As we stated in the preamble, the final rule is not intended
to prohibit mechanisms that allow for voluntary and
anonymous reporting of sexual orientation or gender identity
for compliance with state, local or federal data collection
requirements. So if your state or local
government has determined that it wants to report LGBT status
and gender identity, it is okay to ask as long as it has no
bearing on eligibility determinations.
Marian, can you discuss whether the rule exempts
religious housing providers who wish to exclude LGBT persons?
HUD recognizes that faith-based organizations have
long been involved in HUD programs and provide valuable
services particularly to low income persons served by HUD.
By way of the final LGBT rule, however, HUD did not create an
exemption in the rule allowing HUD assisted religious housing
providers to exclude individuals based on sexual orientation and
gend or identity. HUD has a responsibility to
ensure that its programs are available to all otherwise
eligible persons. HUD strives for its programs to
serve as models of equal housing opportunity.
I would note, though, that no religious organization is ever
required to participate in HUD programs. Thank you again, Marian.
I will now turn this over to Celia, who is a program analyst
in HUD's office of fair housing and equal opportunity.
Thank you, Ken. The last major provision of the
rule applies to the making of loans insured by the federal
housing administration, commonly referred to as FHA.
The rule prohibits lenders from considering the actual or
perceived sexual orientation or gender identity of an applicant
for an FHA-insured loan. Specifically, the rule amends
FHA regulations to add sexual orientation and gender identity
to the list of factors that cannot be considered when
determining the adequacy of mortgage or income.
The regulation already prohibits lebders from considering their
race, color, religion, sex, national origin, familial
status, disability, marital status or source of income of
the applicant or location of the property when determining the
adequacy of mortgage or income for an FHA-insured loan.
This slide provides an example of the violation of this
provision. A woman applies in person for an
FHA loan from a local bank. She brings another woman with
her. While filling out the
application forms, her companion puts her arm around her.
The loan officer believes that the women are aless bean
couple -- lesbian couple and denies the application because
she perceives the applicant is gay.
The rule is violated in this situation.
The woman is applying for an FHA insured loan and is denied the
loan because of her perceived sexual orientation.
So what are some of the important distinctions between
the rule and the Fair Housing Act?
The federal Fair Housing Act, which HUD enforces and
administers, prohibits discrimination on the basis of
race, color, national origin, religion, sex, disability and
familial status. The Fair Housing Act covers most
mortgage lenders and housing providers regardless of whether
the loan is FHA insured or the housing involves HUD funds.
The Fair Housing Act does not specifically include sexual
orientation and gender identity as prohibited base esof
discrimination. However, if the rule is violated
and LGBT person's experience with sexual orientation or
gender identity housing discrimination may also be
covered by the Fair Housing Act. For example, the Fair Housing
Act prohibits discrimination because of sex, which can be
violated by discriminating against a person because of that
person's nonconformity with gender stereotypes.
This slide provides an example of a violation of both the rule
and the Fair Housing Act. An applicant applies for an
apartment at a building that receives HUD assistance.
When the applicant enters a rental office she is wearing a
pair of women's shoes and a skirt.
The leasing agent believes that the applicant is biologically
male and denies the applicant an apartment because he believes
she is transgender. This is a violation of the rule
because the applicant is denied HUD assisted housing because of
her gender identity. Additionally, this action may be
jurisdictional under the Fair Housing Act because the housing
provider denied the applicant housing because of the
applicant's non-conformity with gender stereotypes which
constitutes proexhibitted sex discrimination under the act.
In terms of rule enforcement, an individual who alleges a
violation of these program requirements should contact the
local HUD office that administers the program.
A list of local HUD offices is available on HUD's website at
www.HUD.Gov/local offices. HUD will look into the matter
and follow up with the entity. An entity not in compliance with
the rules requirements could be subject to all sanctions and
penalties for violation of program requirements as provided
for under the applicable program regulations, including the
withholds of HUD assistance. Additionally, one should call
HUD's housing discrimination hotline since as mentioned
earlier some forms of discrimination experienced by
LGBT persons may also be a violation of the Fair Housing
Act or state or local laws. HUD's housing discrimination
hotline is 1-800-669-9777. >> Sealia, one common question
that we have gotten from the public is whether HUD is
creating additional protected classes in the federal Fair
Housing Act by way of this rule. Can you talk about that?
Sure. HUD is not creating additional
protected classes in civil rights laws.
Only Congress, not HUD, has authority to do that.
With this rule, HUD is addressing LGBT equal access
issues through program requirements, not civil rights
laws, which HUD has the authtor hank you.
That is our presentation on the LGBT rule.
For further information on the rule and Fair Housing Act
jurisdiction and housing discrimination complaints from
LGBT persons, please go to www.HUD.Gov/lgbt housing
discrimination. If you have questions you may
also send us an e-mail at LGBTfairhousing@HUD.gov.
And I want to thank again Celia and Todd and Marian for their
wonderful presentations. And behind the scenes I want to
thank Latoya white, Katelyn Stanley, as well as ed and Gary
on the broadcast team.