February 20, 2015
In recent weeks, we’ve reported on the FHA and HUD’s update to Equal Access guidelines as listed in FHA Mortgagee Letter 2015-05. One important area of that mortgagee letter we haven’t written about yet is the FHA and HUD’s authority for changing its Equal Access rules.
To review, ML 2015-05 was issued to update its rules for Equal Access for all regardless of sexual orientation or gender identity. 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.”
The Fair Housing Act is part of the authority for this policy, 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.”
That’s a very important detail to keep in mind about the FHA/HUD Equal Access rules. There’s plenty of legal precedent that gives teeth to the rules. “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.”
Any borrower, loan applicant, etc. who feels they have been 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. As the mortgagee letter reminds us, “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.
Joe Wallace has been specializing in military and personal finance topics since 1995. His work has appeared on Air Force Television News, The Pentagon Channel, ABC and a variety of print and online publications. He is a 13-year Air Force veteran and a member of the Air Force Public Affairs Alumni Association. He was Managing editor for www.valoans.com for (8) years and is currently the Associate Editor for FHANewsblog.com.
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