FHA/HUD Update Equal Access Policy
The updates are referenced in FHA Mortgagee Letter 2015-05. According to the mortgagee letter:
“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.”
That final rule is crucial in preventing perceived or actual discrimination against gay, lesbian, bisexual, or transgendered people. But what gives the FHA the power to create these new policies? The Fair Housing Act is part of that authority, and a broad, inclusive interpretation of the Fair Housing Act gives the FHA and HUD authority to clarify its Equal Access rules without creating new “protected classes” as a result.
From the mortgagee letter: “…Through this ML, HUD’s Office of Housing strives to make its insured program participants aware of the requirements of the Equal Access Rule. The rule 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.”
There is established legal precedent that can be used to further shore up the FHA’s position on these issues. “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.”
It is very important to know that any loan applicant who feels discriminated against in violation of these Equal Access rules should report the discrimination as soon as possible to the Department of Housing and Urban Development for investigation.Complaints of discrimination based on gender identity may be filed by calling 1-800-669-9777 or electronically at: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint.
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