What is the Equal Access Rule?
In 2012 and as later amended in 2016, the Department of Housing and Urban Development (HUD) issued the Equal Access Rule that affirmatively stated that housing assisted or insured by HUD must be made available without regard to actual or perceived sexual orientation, gender identity, or marital status. The Rule prohibits inquiries regarding sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available and further allows inquiries related to an applicant or occupant’s sex for the limited purpose of determining placement in temporary, emergency shelters with shared bedrooms or bathrooms, or for determining the number of bedrooms to which a household may be entitled.
HUD-funded programs include the Housing Choice Voucher Program (Section 8), public housing, Community Development Block Grants, Housing Opportunities for Persons with AIDS (HOPWA), Supportive Housing for the Elderly and Persons with a Disability and Federal Housing Administration (FHA) insured loans.
Persons who believe they have experienced housing discrimination may be able to pursue a claim under the Equal Access Rule or the Fair Housing Act. Housing providers should note the recent Executive Order that expanded the Fair Housing Act protections against discrimination based on sexual orientation, gender identity, and gender expression in housing and all housing-related transactions.
The 2021 Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation directs all federal agencies to interpret protections against discrimination based on sex to include discrimination based on sexual orientation, gender identity, and gender expression. The Order cites the Supreme Court’s 2020 decision in Bostock v. Clayton County, which found that the prohibition on discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.
HUD has announced that it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity. HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds such discrimination occurred. Specifically HUD will conduct all activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation and gender identity.