In recent years, the U.S. Department of Housing and Urban Development and federal courts have begun interpreting the federal Fair Housing Act (FHA) to prohibit such discrimination on a national level. Though the FHA does not explicitly bar a housing provider, seller or lender from discriminating on the basis of gender identity or expression, such discrimination may constitute a form of sex discrimination. This is because sex discrimination has been interpreted to include discrimination based on an individual’s non-conformity with sex and gender stereotypes. However, for decades, California state law has explicitly prohibited housing discrimination based on gender identity and gender expression.
Housing seekers are protected from sexual orientation discrimination regardless of whether they identify as gay, lesbian, or bisexual. The law also prohibits a housing provider from taking action based on an individual’s perceived sexual orientation. That is, it is illegal for a landlord to refuse to rent an apartment to a woman because he thinks she is a lesbian, even if she is not.
Sexual orientation discrimination may be linked with discrimination based on gender identity and expression. It also may be closely linked to disability discrimination, which also protects individuals who are perceived to have disabilities. For example, a housing provider who refuses to rent an apartment to a gay man because he believes that all gay men have HIV/AIDS is engaging in both sexual orientation and disability discrimination, even if the man does not have HIV/AIDS.
Since 2012, entities receiving federal funds from the Department of Housing and Urban Development have been banned from discriminating on the basis of actual or perceived sexual orientation. The rule makes it clear that owners and operators of HUD-funded housing, or housing insured by HUD, may not discriminate on the basis of sexual orientation. Banks that provide mortgages insured by the Federal Housing Administration are also prohibited from taking into account sexual orientation. These rules apply nationwide, regardless of local anti-discrimination laws.
HUD has recognized that LGBT youth are at high risk of homelessness, and that they often experience harassment at shelters. HUD has made it clear that discrimination based on sexual orientation will not be tolerated in any emergency or transitional shelter program receiving federal funds. Shelter providers may not inquire about sexual orientation, and must address any harassment and safety concerns.
Special rules apply for persons who identify as transgender who are seeking assistance from a single-sex or segregated shelter.
The only religious exemption is for housing that is (1) operated for noncommercial purposes, and (2) operated by a religious institution or a closely affiliated organization. This type of housing is very, very limited and only permits religious institutions to discriminate on the basis of religion.
As discussed above, any organization receiving HUD funding must refrain from discriminating on the basis of sexual orientation or gender identity. Many religious institutions receive such funding to operate transitional housing or shelters. They are not exempt from any part of the Fair Housing laws. Also see our page on religious discrimination for a discussion of the religious rights of participants in HUD-funded programs operated by religious institutions.
As for private housing providers, there is no religious exemption to the Fair Housing laws. A private landlord may not object to a same-sex couple or a transgender tenant simply because they have a religious objection to gay or transgender persons.
Sexual orientation discrimination may include, but is not limited to, the following behaviors: