On February 11, 2021, the U.S. Department of Housing and Urban Development (“HUD”) issued an order that it considers sexual orientation and gender identity as a part of a protected class for fair housing purposes. HUD has also stated that they will look back over the past year and immediately start prosecuting cases on this basis.

This change in policy comes directly from the White House. On January 20, 2021, as one of his first executive orders, President Biden ordered that all agencies across the federal government must review existing regulations and policies and revise them to expand “sex” to include sexual orientation and gender identity. The Executive Order didn’t explicitly cover such groups, but rather directed the different federal agencies to do so.

HUD was the first federal agency to act in accordance to President Biden’s executive order and announce that the Fair Housing Act bars discrimination based on gender identification and sexual orientation and will enforce the law to combat such biases. HUD has taken the position that the use of the word “sex” in the federal Fair Housing Act includes these additional classes.

It is important to note that this is just a change from HUD, and the text of the federal Fair Housing Act has not changed. Theoretically, therefore, this could always change again in a new administration. It is because of this that we, as attorneys, prefer that changes be made in the law by the legislature, and not just by administrative agencies. Even while we believe this is a good outcome, we believe such changes should be made statutorily.

We have strongly suggested that our clients must never discriminate against someone on account of their sexual orientation or their gender identity. Now it is the law throughout the country.  Additional cities in Arizona are also trying to make sexual orientation and gender identity protected classes in the language of the law as well.  Further, as noted above, we generally advise people to comply with fair housing laws, even if they believe an exception may apply to them.