Recently, my colleague Richard Kahlenberg wrote an extensive report on how shocking amounts of racial segregation and socioeconomic discrimination exist in the housing market despite the Fair Housing Act. Kahlenberg suggests that the Fair Housing Act can be updated to better serve all Americans, particularly low-income Americans who are priced out of housing due to exclusionary zoning policies.
The report is a sobering reminder of just how far our country is from ensuring fair and equitable housing policy for all. Given that LGBT Americans have never had federal protections from discrimination in the housing market and face disproportionately higher rates of homelessness, an update to the Fair Housing Act has the potential to radically change the lives of all LGBT people, including struggling queer youth.
For the Fair Housing Act to appropriately address this crisis of LGBT homelessness and anti-LGBT housing discrimination in real estate markets nationally, the act must include specific protections against anti-LGBT housing discrimination, ensure that these anti-discrimination laws are enforced, and create a broader availability for affordable housing options.
Homelessness and Housing Discrimination Facing LGBT Americans
Housing discrimination and homelessness are LGBT policy issues that have not received as much national attention. Prior to the 2015 Supreme Court ruling that declared same-sex marriage as constitutional, the most visible LGBT issue on the national policy agenda was marriage equality. Now, national discussions surrounding the LGBT population center more on discrimination in schools and higher education, particularly against transgender youth in gender-segregated facilities.
The sheer magnitude of LGBT youth homelessness—despite LGBT people only making up 10 percent of the population, but 40 percent of the homeless youth population—does not get the attention that such a startling statistic deserves. Of these homeless LGBT youth, 68 percent report experiencing family rejection and 54 percent report experiencing abuse from their family.
In addition to the homelessness facing queer youth, housing discrimination against LGBT people in general is also extremely prevalent. One 2013 study found that same-sex couples experienced discrimination in the online rental housing market, as they received significantly fewer responses to e-mail inquiries about advertised units than heterosexual couples. A similar 2011 experiment in Vancouver also found that male same-sex couples faced higher amounts of discrimination in relation to heterosexual couples. Additionally, transgender individuals experience significantly more discrimination in housing than cisgender gays or lesbians.
The Need for Protections Against Anti-LGBT Housing Discrimination
While some states and municipalities like Colorado, Iowa, and Minnesota have included explicit housing discrimination protections for LGBT people in their laws, no such protection exists nationwide. That means that housing discrimination based on sexual orientation and gender identity is completely legal under U.S. federal law.
Housing discrimination based on sexual orientation and gender identity is completely legal under U.S. federal law.
Under federal law, complaints can still be filed if an individual believes they were discriminated against based on perceived or real HIV status, or for failure to conform to gender stereotypes. But while there have been some successful instances of litigation in which LGBT plaintiffs claimed that discrimination against LGBT people can be considered sex discrimination, and therefore covered by the Fair Housing Act, there is still no transparent, legislatively codified protection against eviction on the grounds of having a same-sex partner or being openly transgender.
This is an issue, given that federal agencies have recently become more hesitant to interpret sex discrimination as encompassing anti-LGBT discrimination. The Department of Justice and the Department of Education recently retracted guidance that interpreted Title IX’s restrictions against sex discrimination to include gender identity as well—effectively removing any obligation for schools to prevent discrimination against transgender students. The Department of Housing and Urban Development (HUD) has already rolled back a policy that required federally-funded shelters to allow transgender residents to stay in a shelter that corresponds to their gender identity. It’s clear that explicit, codified protections for LGBT people are crucial, since counting on far-reaching legislative interpretations for basic civil liberties is proving unsustainable for vulnerable populations.
The Need for More Enforcement
However, the fight against anti-LGBT housing discrimination will not end simply with writing protections for sexual orientation into law. The current lack of enforcement of existing anti-discrimination laws must also be addressed, since discrimination that is banned in theory often still takes place in practice. For example, to this day, racial discrimination often occurs in the real-estate market. A 2012 study by HUD found that black renters and homebuyers were told about 11% less rental units than whites, and were shown almost 18% less homes than whites.
But even this federally prohibited discrimination is rarely reported and even more rarely acted upon. Out of an estimated 4 million people who experienced discrimination in the housing market, only 27,000 complaints were filed with HUD in 2014. This could be because HUD very rarely punishes jurisdictions for breaking discrimination laws. In several instances, HUD has continued to send grants to communities even after they’ve been found to have segregated housing or been sued by the Department of Justice. Furthermore, active monitoring for discriminatory activity is done almost solely through the work of nonprofit organizations, not HUD.
So, adding sexual orientation and gender identity to the Fair Housing Act will have little practical benefits for LGBT people unless this amendment is coupled with measures to increase HUD’s actual enforcement of their own policies. Some potential ways to bolster this enforcement include suggestions from Kahlenberg’s report. He writes that we need “funding for more testers who can ferret out and punish landlords who discriminate. We need more funding for lawsuits like the Gautreaux litigation in Chicago. We need more disparate impact suits, and strong compliance with the new Affirmatively Furthering Fair Housing regulations.”
The Need for Affordable Housing
However, addressing the LGBT homelessness crisis can also be done by addressing housing affordability in a broader sense. Despite the cultural myth of gay affluence, 27 percent of LGBT people reported facing food insecurity sometime in 2015, compared to only 17 percent of heterosexuals. This disproportionate disadvantage may be due to the fact that LGBT people also lack consistent federal protections in another key area: employment. That LGBT people face these higher rates of disadvantage means the national lack of affordable housing specifically harms LGBT individuals.
Housing can be made more affordable through the augmentation of the Fair Housing Act, so that it bans exclusionary zoning policies. These exclusionary zoning policies artificially raise the housing prices in certain affluent neighborhoods, and therefore prevent denser and more affordable buildings like apartments from being constructed in those neighborhoods. By addressing these exclusionary zoning policies, housing can be made more affordable in general.
The movement for LGBT liberties, protections, and dignity is far from over.
The movement for LGBT liberties, protections, and dignity is far from over. Newly appointed HUD Secretary Ben Carson dismissed the idea of a federal ban on anti-LGBT housing discrimination as “extra rights.” But given that nearly half of our homeless youth population is queer, and that landlords can still refuse someone housing simply because of their sexual identity, it is clear that LGBT Americans are simply asking for the same dignity and protections under the law that all others already receive.