FAQ: Housing Rights of LGBT Seniors

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July 26, 2016
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Lambda Legal client Marsha Wetzel

What are my housing rights as an LGBT senior?

LGBT older adults have the right to be free from discrimination in public and private housing, including in housing assistance programs like Section 8 and seniors’ housing programs. LGBT older adults also have a right to be free from discrimination, isolation, harassment, abuse and neglect in long-term care, rehabilitation, and assisted-living facilities, and to have your privacy, relationships, gender identity and choices equally respected. Seniors have a right to be free from discrimination in accessing health care and have a right to be treated with dignity and respect by health care and social service professionals.

 

Are there laws that protect LGBT people from discrimination in housing?

Yes, there are a range of protections for LGBT older adults at the federal, state, county and municipal levels. Some govern public actors, some private, and some are tied to whether you receive money from the government. There are different ways that these laws are enforced as well – some require that you file complaints with agencies, file lawsuits, or involve contacting police.

Housing anti-discrimination laws may apply to: public housing, private housing (with few exceptions for small or owner-occupied dwellings), senior housing communities, skilled nursing facilities, assisted living facilities, shelters, and similar facilities.

At the federal level, the Fair Housing Act prohibits discrimination in most private and public housing on the basis of race, color, national origin, religion, sex, familial status or handicap. The FHA makes it illegal to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services.

 
Smith v. Avanti
Challenges property owner’s refusal to rent a home to a same-sex couple, one of whom is transgender, and their children under the Fair Housing Act (sex and familial status) and Colorado’s Anti-Discrimination Act (sex, sexual orientation, gender identity)

How does the Fair Housing Act apply to LGBT people?

The Fair Housing Act’s sex discrimination prohibitions apply to LGBT people. Sex discrimination includes sex-based harassment and discrimination rooted in gender stereotypes, including stereotypes of heterosexually-defined gender roles in relationships and families and stereotypes related to gender identity.

Federal agencies and courts are increasingly recognizing discrimination against LGBT people as sex discrimination, whether per se or under sex-stereotyping theories. The U.S. Equal Employment Opportunities Commission (EEOC) interprets Title VII protections to apply to lesbian, gay, bisexual, and transgender applicants and employees.

A collection of relevant court cases can be found at https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm

More information on the Fair Housing Act and how it protects LGBT people can be found on HUD’s website: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination.

 
Jim and Bob faced harassment in their Arizona retirement community’s pool, where Jim was helping Bob with physical therapy. Facility staff refused to intervene, and when Jim and Bob filed a complaint, the board failed to follow community procedures for investigating. Instead, they placed a written reprimand in Jim and Bob’s file for alleged foul language in violation of the community code of conduct.

Are there any other housing protections at the federal level?

Yes, the U.S. Department of Housing and Urban Development’s Equal Access Rule may also provide some relief. Enacted in 2012, the Equal Access Rule prohibits discrimination based on sexual orientation, gender identity and marital status in federally-funded housing and federally-insured mortgage programs. The rule also defines the terms “family” and “household,” as used in HUD programs, which includes persons regardless of actual or perceived sexual orientation, gender identity, or marital status; and

prohibits owners and operators of HUD-funded housing, housing insured by FHA, and FHA lenders from asking about an applicant’s or occupant’s sexual orientation or gender identity to determine eligibility or adequacy of a potential borrower’s income. HUD has issued guidance regarding the Equal Access Rule’s applicability to multifamily insured and assisted housing, including Section 202 Supportive Housing for the Elderly which can be found at the following link: http://portal.hud.gov/hudportal/documents/huddoc?id=15-06hsgn.pdf

 

Do senior housing communities have any legal obligation to protect LGBT seniors or address complaints of discrimination?

Yes, for seniors living in senior housing communities, a facility’s failure to address harassment by other residents can also be considered discrimination. 

 
Marsha has faced months of harassment and incidents of assault by other residents in her independent living facility. Despite Marsha’s complaints, the facility has failed to assist her or address the harassment. Rather, the staff has isolated Marsha further, and retaliated against her for complaining.

Are there protections for LGBT seniors in housing establishments that also provide medical care?

Yes, for housing establishments that also provide medical care (i.e., assisted living facilities, long term care settings), other federal, state, and local laws may apply, including Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination in any health program or activity, any part of which is receiving federal financial assistance, or under any program or activity established by the ACA on the basis of race, sex (including gender identity and non-conformity with sex stereotypes), disability, or age.

Also, the Federal Nursing Home Reform Act (FNHRA)—A comprehensive federal statute that creates a minimum set of standards of care and rights for people living in Medicare or Medicaid certified nursing facilities. FNHRA does not limit its protections to a specific class of individuals. Most states have similar residents’ rights laws. For information on its specific application to LGBT residents, see http://www.lambdalegal.org/publications/fs_nursing-home-residents-rights

 

Are there laws in my state that protect seniors from housing discrimination?

There may be. Several states have laws that prohibit housing discrimination on the basis of sexual orientation as well as gender identity. If you are an older adult and feel that you have been denied housing because of your sexual orientation or gender identity, or if you are experiencing anti-gay or anti-trans discrimination where you live, please contact the Lambda Legal Help Desk online at http://www.lambdalegal.org/help