The Geography of HUD’s LGBT Fair Housing Proposal

 

Comments were due March 25 on HUD’s proposed LGBT fair housing rule, entitled, “Equal Access to Housing in HUD Programs – Regardless of Sexual Orientation or Gender Identity.”  While we wait for those comments to be analyzed and made public (just a few days before the 25th the department had received 255), let’s take a look at the rule’s spatial impacts and implications.

First, some basics about the rule.  You might ask how does HUD, an executive agency, legally expand fair housing legislation to include new protected categories?  If you thought the answer was through its Fair Housing Civil Rights division, you’re wrong. Rather, the proposal rests on HUD’s “specific rulemaking authority to establish eligibility criteria for participation in HUD programs granted by the statutes that establish the various HUD programs.”  In other words, HUD is playing around with the definitions and criteria of its own programs to make LGBT housing access an explicit requirement for anyone who otherwise qualifies.  More on that further down.  Local program administrators will be responsible for incorporating this rule into their program designs.

And while we wait around for sexual orientation and gender identity to be written into federal non-discrimination clauses (shouldn’t this be priority #1 before marriage equality?), the potential impact of the HUD rule is pretty impressive in scale. Consider the map below of Public Housing Authorities (PHAs) across the country.  While the map doesn’t show you PHA jurisdictional boundaries, it does give you a clear sense of the approximate location and number of housing projects and vouchers in each state.

Next, consider this map of states that have yet to pass LGBT discrimination bans for housing and employment (the white states).  Although this map (the most recent I could find) is from 2009 (courtesy of the National Gay & Lesbian Task Force), things haven’t radically changed in two years.

There is a large band of ‘white states’ in the south, southeast, and the ‘Ohio River Valley’ midwest.  Compare that to the tremendous amount of public housing units and vouchers clustered in the same regions.  With this HUD rule, no matter what state laws say, public housing units and section 8 rentals have to accept low-income LGBT folks holding vouchers or at the tops of waiting lists. Easily a quarter of the country’s states will have significantly expanded LGBT protections; these are places where any landlord or lender could deny someone housing based on sexuality or gender.

Definitions

Public housing will be one of the realms of largest impact for this rule, because it is one of the few HUD programs whose beneficiaries are called ‘families’ and not ‘households.’  Only ‘families’ can qualify for public housing programs, and so the proposed rule, “clarifies and confirms the broad meaning of family” including “all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity.”  FHA-insured lenders will also be responsible for carrying out the new rule, because the proposal includes “actual or perceived sexual orientation and gender identity” within the “prohibited grounds” by which a lender can deny or otherwise alter the terms of a mortgage.  Although localities can create stricter definitions of family through local zoning codes that apply to housing not subsidized by HUD, these definitional changes are still hugely important. LGBT history tells us that definitions that aren’t inclusive have often allowed for implicit discrimination.

While sexual orientation and gender identity are also defined in the proposed rule (gender identity as “actual or perceived gender-related characteristics”), one term that remains undefined is “sex.”  How some programs will distinguish between gender identity and sex (public housing programs use sex information to determine number of bedrooms) appears unclear and unresolved.

Can’t Ask / Can Tell

One of the strangest parts of the proposed rule is a prohibition on “inquiries regarding sexual orientation or gender identity,” although HUD customers can feel free to volunteer that information. My first instinct was that this sounds something like ‘don’t ask, don’t tell,’ in which silence and closeting is assumed to be the best or easiest way to prevent discrimination.  It also seems to undercut the rule’s consistent implication that discrimination based on perception is as real as discrimination based on ‘known facts.’  If LGBT discrimination is often based on perception and non-verbal cues, doesn’t this prohibition also create a false sense of safety?  And finally for practical purposes, a prohibition like this would rule out the collection of data on sexual orientation and gender identity, which is something that could be extremely useful given the lack of data sources out there.

What Do the Impacts Tell Us So Far?

Last summer, before the proposed rule was issued, HUD began developing guidance for how its fair housing laws might be interpreted to protect LGBT folks.   Since then, the number of LGBT housing discrimination complaints HUD receives in a given year jumped up a dozen times over.  And quite interestingly, most claims were filed by trans persons, gender non-conformists, or those perceived in such ways.  Since there has never been a rigorous national study on LGBT discrimination, do these early numbers shed light on the nature of LGBT discrimination?

If you’ve checked out the HUD rule, let us know what you think..