HUD Updates Equal Access Rules for Marital Status, General Identity, Sexual Orientation
February 2, 2015 the Department of Housing and Urban Development (HUD) published H 2015-01: Notice of Program Eligibility for HUD Assisted and Insured Housing Programs for All People Regardless of Sexual Orientation, Gender Identity or Marital Status as Required by HUD’s Equal Access Rule.
(b) The term “gender identity” means actual or perceived gender-related characteristics.
(c) The term “sexual orientation” means homosexuality, heterosexuality or bisexuality.
The purpose of the Housing Notice (Notice) is to increase awareness of Office of Housing program participants and stakeholders of the requirements of the HUD Equal Access Rule for actual or perceived discrimination based on sexual orientation, gender identity, or marital status.
On February 3, 2012, HUD published a final rule entitled Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity (77 FR 5662) (“Equal Access Rule or “rule”). The final rule ensures that housing across HUD programs are open to all eligible individuals regardless of actual or perceived sexual orientation, gender identity, or marital status.
Changes to HUD’s General Regulations:
The rule revises HUD’s general program requirements by adding the following provisions at 24 CFR 5.105(a)(2):
- (a) A determination of eligibility for housing that is assisted by HUD or subject to a mortgage insured by the Federal Housing Administration shall be made in accordance with the eligibility requirements provided for such program by HUD, and such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status, and
- (b) No owner or administrator of HUD-assisted or HUD-insured housing, approved lender in an FHA mortgage insurance program, or any other recipient or sub-recipient of HUD funds may inquire about the sexual orientation or gender identity of an applicant for, or occupant of, HUDassisted or HUD-insured housing for purposes of determining eligibility or 2 Changes to FHA Regulations: Fair Housing: otherwise making such housing available. However, permissible inquiries into sex are permissible for temporary, emergency shelter with shared sleeping areas or bathrooms, or to determine the number of bedrooms to which a household may be entitled.
The rule also revises HUD’s generally applicable definitions at 24 CFR 5.100:
- (a) The term “family” includes, but is not limited to the following, regardless of actual or perceived sexual orientation, gender identity, or marital status:
- (1) A single person, who may be an elderly person, displaced person, disabled person, near-elderly person or any other single person; or
- (2) A group of persons residing together and such group includes, but is not limited to:
- (i) A family with or without children (a child who is temporarily away from the home because of placement in foster care is considered a member of the family);
- (ii) An elderly family;
- (iii) A near-elderly family;
- (iv) A disabled family;
- (v) A displaced family; and
- (vi) The remaining member of a tenant family.
Changes to FHA Regulations:
The rule made two changes to 24 CFR part 200-Introduction to FHA Programs and one change to 24 CFR part 203-Single Family Mortgage Insurance.
- (a) The rule incorporated in FHA Programs the new definition of “family” found in 24 CFR 5.100. 24 CFR 200.3
- (b) The rule incorporated the nondiscrimination requirements of the Equal Access Rule in FHA programs. 24 CFR 200.30
- (c) The rule incorporated the requirement that “marital status, actual or perceived sexual orientation or gender identity” not be considered when determining the adequacy of the mortgagor’s income for single-family mortgage insurance. 24 CFR 203.33
Fair Housing:
Through this notice, HUD’s Office of Housing strives to make its program participants aware of the requirements of the Equal Access Rule. The rule 3 does not create any additional protected classes under the Fair Housing Act or any other civil rights law. Although the Fair Housing Act does not expressly include sexual orientation, gender identity and marital status as protected classes, a lesbian, gay, bisexual, or transgender person’s experience with sexual orientation or gender identity housing discrimination may still be covered by the Fair Housing Act’s prohibition on discrimination based on sex. For example, courts have recognized that the Fair Housing Act’s prohibition against discrimination because of sex includes discrimination based on non-conformance with sex stereotypes. Therefore, under certain circumstances, complaints involving sexual orientation or gender identity may be investigated under the Fair Housing Act.
Many states and local jurisdictions prohibit housing discrimination based on sexual orientation, gender identity and/or marital status, and HUD may refer complaints or other information concerning these protected classes to appropriate state and local fair housing enforcement agencies.
Applicability:
The Office of Single Family Housing has incorporated this change into its Single Family Housing Policy Handbook, 4000.1, which will be effective June 15, 2015. Other housing program offices will provide additional guidance on how the rule specifically affects Housing insured and noninsured programs through Mortgagee Letters, Notices and/or other appropriate communications.
Anna DeSimone is President and Founder of Bankers Advisory and Principal of CliftonLarsonAllen LLP. She can be reached at Anna@bankersadvisory.com
Anna DeSimone founded Bankers Advisory in 1986 and is a nationally recognized authority in residential mortgage lending. She has received numerous industry awards and has authored more than 40 best practices guides and hundreds of articles.
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