Fair housing laws have existed in America for over six decades. Yet, it remains unsettled how those laws apply to the nearly 1 in 10 U.S. adults who self-identify as lesbian, gay, bisexual, transgender, queer, or anything other than heterosexual (LGBTQ+). This lack of clarity has alarming ramifications for landlords. It has nothing to do with politics, morals, or being “woke”; we’re talking about liability risk. As this segment of the population continues to grow, landlords must incorporate LGBTQ+ rights into their fair housing compliance programs regardless of their personal views or feelings on the subject.  

In recognition of Pride Month, this month’s lesson addresses the thorny issue of LGBTQ+ discrimination and what landlords must do to avoid it. First, we’ll explain how the fair housing laws apply to LGBTQ+ people. We’ll show you why potential liability for sexual orientation and/or gender identity discrimination is and will remain a concern in many parts of the country, regardless of the current state of federal enforcement under Trump 2.0. 

Next, we’ll outline nine rules that landlords and their leasing agents, maintenance, and other rental staff must know to avoid engaging in LGBTQ+ discrimination inadvertently. We’ll finish up the lesson with the Coach’s Quiz, enabling you to apply the lessons to real-life situations and evaluate how well you learned the material.

DEEP DIVE

HUD Study Documents LGBTQ+ Discrimination

Research is starting to confirm what has long been suspected—namely, that LGBTQ+ people experience housing discrimination at disproportionate rates. Thus, a seminal 2017 study commissioned by the U.S. Department of Housing and Urban Development (HUD) using paired testing found that: 

• Different-sex couples were over 15 percent more likely to get positive responses to inquiries about advertised rental housing than same-sex couples;
• Gay men were told about one fewer available rental unit for every 4.2 tests than were straight men;
• Gay men were quoted average annual rental costs $272 higher than the costs quoted to straight men for the same units; and
• Housing providers told transgender testers about fewer units than they told cisgender testers.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA), a.k.a. Title VIII of the Civil Rights Act, bans discrimination based on race, color, religion, sex, national origin, familial status, and handicap (disability). Notice that LGBTQ+ isn’t on the list of protected classes. Even so, HUD, the U.S. Department of Justice (DOJ), and the federal courts interpret the FHA ban on “sex” discrimination as also including sexual orientation and gender identity. According to HUD regulations: 

• Discrimination based on real or perceived gender identity is a direct form of sex-based discrimination; and
• Discrimination based on a person’s sexual orientation may also constitute sex-based discrimination when it’s motivated by “perceived nonconformity with gender stereotypes,” like the perception that women should act in a “feminine” way and men should act in a “masculine” way. 

In February 2012, HUD issued what’s known as the “Equal Access Rule,” which among other things, bans owners from asking about an applicant’s or tenant’s sexual orientation or gender identity for purposes of determining their eligibility for HUD assisted housing. In 2016, HUD expanded the Equal Access Rule to require HUD-supported operators of single-sex projects to provide services regardless of an individual’s gender identity.

DEEP DIVE

The 3 Kinds of LGBTQ+ Protections

Rather than use the term “LGBTQ+,” federal and state fair housing laws describe specific sexual and gender-related characteristics the particular law protects, which may include one or a combination of:

• Sexual orientation, which generally refers to a person’s physical, romantic, and/or emotional attraction to people of the same and/or different gender;
• Gender identity, which basically refers to an individual’s own internal perception and experience of gender, which may or may not be the same as the sex they were assigned at birth; and
• Gender expression, which is the way a person expresses or presents their gender through their name, pronouns, clothing, hairstyle, behavior, voice, or similar characteristics that may or may not conform with stereotypes and cultural expectations.

The Supreme Court Bostock Ruling. Although the Equal Access Rule is limited to housing financed by HUD, the agency has repeatedly made it clear that its broad interpretation of the FHA’s ban on sex discrimination as including LGBTQ+ discrimination applies to conventional housing as well. HUD is hardly alone in this view. Several federal courts have also held landlords liable for LGBTQ+ discrimination under the FHA. 

Example: One of the first of these cases occurred in April 2017 when a U.S. district judge ruled against a Colorado landlord for refusing to rent a home to a married lesbian couple. When asked for a reason, the landlord cited the couple’s “unique relationship.” According to the court, the landlord violated the FHA ban on sex discrimination by relying on stereotypes about whom a woman should marry, be attracted to, or have a family with [Smith v Avanti, 249 F. Supp. 3d 1194].

While the Title VIII LGBTQ+ cases have been relatively rare, there have been many more such rulings on Title VII of the Civil Rights Act, which also bans sex discrimination in the context of employment. The most important of these cases was a 2020 U.S. Supreme Court decision called Bostock v. Clayton County, holding that Title VII’s ban on sex discrimination covers sexual orientation and gender identity. 

From Trump 1.0 to Biden to Trump 2.0. FHA enforcement is a perfect illustration of why presidential elections matter. Driven by a determination to cut red tape, the first Trump administration enforced fair housing laws far less vigorously than its predecessor, particularly with regard to LGBTQ+ rights. Although it didn’t formally revoke the Equal Access Rule, HUD under Trump 1.0 ignored it and ate away at its edges with regard to HUD-assisted homeless shelters.

The tide turned on Jan. 20, 2021, when newly inaugurated President Biden issued Executive Order 13988 calling on all federal agencies to take affirmative steps to root out LGBTQ+ discrimination in their respective areas of jurisdiction. Less than three weeks later, HUD issued a Memorandum declaring that it would treat LGBTQ+ complaints the same way as complaints based on race, religion, sex, and other protected classes in accordance with the Bostock ruling.

Current State of LGBTQ+ Enforcement. Biden is now gone, and Trump 2.0 is the new sheriff in town. HUD under Trump 2.0 has already withdrawn approximately 115 FHA cases initiated by the Biden regime, including cases alleging sexual orientation and gender identity discrimination. New HUD Secretary Scott Turner has also ordered agency staff to halt enforcement of the Equal Access Rule to allow federally supported homeless shelters to turn away transgender females. 

It’s safe to say that HUD and the DOJ won’t be aggressively going after landlords for LGBTQ+ discrimination from now until at least 2029. But it’s important to keep things in perspective and context. For one thing, the Bostock ruling isn’t going anywhere. And as long as that case remains on the books, federal courts will have legal justification to rule against landlords that commit LGBTQ+ discrimination under Title VIII. 

Another important thing to keep in mind is that HUD and the DOJ account for only about 6 percent of the 30,000+ fair housing complaints filed in the U.S. each year. The vast majority—75 percent—are filed by private nonprofit fair housing advocacy organizations. HUD has tried to slash the funding many of these organizations rely on, prompting a federal lawsuit that has so far gone in the organizations’ favor but remains ongoing. 

State Anti-LGBTQ+ Discrimination Laws. Federal FHA protections are only one part of the legal landscape of LGBTQ+ fair housing rights. Every state has its own fair housing law that also bans sex discrimination. And 24 of these states (and the District of Columbia) include protections for sexual orientation and/or gender identity and, in some states, gender expression (see table below).

Some of the other 26 states without express LGBTQ+ protections, including Arizona, Florida, Nebraska, North Dakota, Ohio, and Pennsylvania, interpret their state fair housing law ban on sex discrimination as extending to sexual orientation and gender identity. In addition, many cities include LGBTQ+ protections in their own fair housing laws, including major municipalities like Atlanta, Boston, Chicago, Dallas, Los Angeles, Miami, New York, and Philadelphia.  

LGBTQ+ Fair Housing Discrimination Protections by State (as of May 2025)

* State in which ban on “sex” discrimination has been interpreted as also banning sexual orientation and gender identity discrimination.

9 RULES TO FOLLOW FOR AVOIDING LGBTQ+ DISCRIMINATION

Because of Bostock and state laws, every landlord in America is a potential target for LBGTQ+ discrimination litigation and enforcement action regardless of where they operate or the policies of the current administration. So, let’s now turn to how to manage those risks.

Rule #1: Don’t Ask Prospects or Tenants About their Sexual Preferences or Gender

An applicant’s sexual preferences or gender identity/expression has absolutely no bearing on their eligibility to rent housing from you. So, asking questions about these characteristics raises a bright red flag of discrimination. That includes inquiries about:  

• A person’s gender expression (example: asking a female applicant why she has a crewcut);
• The relationship between household members (example: asking if those members are in a sexual relationship);
• An applicant’s marital status; and
• The name of the applicant’s spouse or significant other. 

Compliance Pointer: Discriminating based on the perception that a person is LGBTQ+ is also illegal even if that perception is wrong. 

Rule #2: Don’t Let Sexual Stereotypes Affect Your Decisions or Behavior

When dealing with LGBTQ+ persons, it’s absolutely crucial to avoid stereotypes based on how you believe people of a particular gender should behave and who they should and shouldn’t have sex with. Examples of pitfalls to avoid: 

• Refusing to rent to an otherwise qualified gay couple because you believe that homosexuality is a sin; 
• Refusing to rent to a gay male because you fear he has AIDS; and 
• Asking a transgender resident not to dress in women’s clothing in the common areas of the building.

Example: HUD charged a Texas landlord with sex discrimination for declining a transgender tenant’s request to wear women’s clothing in the common areas because he didn’t want to “promote this type of atmosphere” on the property. The landlord ended up paying damages and $16,000 in civil penalties to settle the case [HUD v. George Toon and In Toone Services, LLC, Case 6:13­cv­00744, U.S. Dist. Ct., E.D. Tex., 2013]. 

Also caution your staff against making offensive comments based on stereotypes such as:

• Telling two gay men that you haven’t touched up the paint because you’re sure they’ll decorate the place far better than you could;
• Remarking to a lesbian couple that you know at least one of them is handy, so they probably won’t even need to bother you with maintenance calls; or
• Asking a lesbian applicant why she hates men. 

Rule #3: Respect LGBTQ+ Persons’ Gender Choices & Pronouns

While you should instruct leasing agents and other personnel to treat everybody with respect, this is especially imperative when dealing with applicants who are transgender or what’s called “non-binary.” There’s more on the line than hurt feelings; disrespecting an LGBTQ+ person’s gender preferences isn’t just rude but also potentially illegal. But respecting gender choices can also be tricky.  

The first thing to understand is that non-binary persons may identify and want to be treated as belonging to a sex that differs from the sex they were born into—whether male, female, a combination of both, or even none of the above. Non-binary people may also want you to refer to them by pronouns that don’t match their birth gender. Thus, individuals born as a male may ask you to refer to them using the she/her/hers or they/them/theirs pronouns.   

Compliance Strategy: Instruct staff to use the name and pronouns that applicants and tenants self-identify as and ask you to use, not the ones you think they should use. Example: An applicant born as a male asks you to call her “Dawn” even though her driver’s license lists her legal name as “Dan Smith.” Insisting on calling her Dan and referring to her as “he” or “him” because you think she’s really a man constitutes sex and gender identification discrimination.  

Pointer: Asking someone for their name and preferred gender pronouns generally isn’t a violation as long as you ask the question consistently, in good faith, and for a legitimate, nondiscriminatory purpose like determining how to be respectful to a person in future dealings. Such questions should be scripted out and incorporated into rental application and other forms to avoid inconsistencies that may be deemed discriminatory. 

BEST PRACTICE 

Implement Gender-Neutral Language Protocols

One way to ensure respectful communication with non-binary applicants is to use language that’s inclusive and gender-neutral and avoid everyday words and phrases that make unintentional references to gender norms or gender-related biases:

The Vocabulary of Inclusion

Rule #4: Beware of Inadvertently Discriminatory Application Processes

Review your current rental application systems, procedures, and forms for things that may be red flags of LGBTQ+ discrimination. Texas fair housing consultant Anne Sadovsky suggests focusing on the number of applications or fees you require when renting to couples. It’s not unusual, Sadovsky explains, for communities to require married couples to fill out just one application and pay one fee while requiring unmarried couples to complete separate forms and pay separate fees. This practice is based on the assumption that married couples require only a single credit check because they have joint credit. But while it may seem neutral and nondiscriminatory on its face, this practice may have the effect of discriminating against same-sex couples.

Some states that ban sexual orientation discrimination, like Washington, have guidelines allowing landlords to have one fee for married couples and two fees for unmarried couples’ policy. But it’s unclear whether HUD would allow this practice, especially in states that don’t recognize the exception the way Washington does. Accordingly, the safe strategy is to impose the same application and fee requirements on all couples regardless of marital status. And if you do have separate rules for married couples, make sure they apply to all married couples, both heterosexual and same-sex. 

Compliance Pointer: Don’t list “Mr./Ms./Mrs. __________” on application and other forms. Either add “Mx.” to the options or simply delete all items asking for gender-related titles or other gender-based information. 

Rule #5: Beware of Inadvertently Discriminatory Advertising & Marketing  

Advertising that indicates a preference for or against particular types of renters on the basis of protected class is illegal discrimination. So, review your advertising and marketing materials to ensure that they don’t contain any images or phrases, such as “traditional couples” or “Christian community,” that could be deemed as discouraging or even encouraging prospects based on LGBTQ+ characteristics. Pictures of couples in ads may be problematic if they’re all opposite-sex or, for that matter, same-sex. Best Practices: 

• Describe the property and amenities, not the people who live in it or that you think should live in it;
• Make sure that the websites, newspapers, and other outlets you advertise in reach LGBTQ+ people (although they probably shouldn’t exclusively target that or any other demographic);  
• State in your ads that you’re an inclusive community that complies with all fair housing laws;
• If you show pictures of couples, show a mix of same- and opposite-sex couples; and
• Put the HUD fair housing logo in your ads. 

Rule #6: Beware of LGBTQ+-Based Steering

Steering occurs when a housing provider tries to influence a rental prospect’s choice in housing based on their protected characteristics. The most common form of steering is discouraging applicants from renting at the community based on those characteristics. This may be the product of simple prejudice or a desire to placate the prejudices of current tenants who don’t want “such people” as neighbors, such as where a leasing agent doesn’t tell a gay prospect about an available unit to protect the religious tenant with fervent objections to homosexuality who lives next door.

Steering is illegal even when leasing agents sincerely believe that they’re acting in the applicant’s best interests. Perhaps the most common form of well-intentioned steering is directing renters to locations where they’d feel “comfortable” living. Example: A leasing agent tells a lesbian couple that most of the tenants in the building are heterosexual and asks “are you sure you’d be comfortable living there?” and suggests that “I can show you other units next door to other lesbian couples.”  

At the end of the day, why housing providers engage in steering is irrelevant. The important thing to recognize—and ensure that your leasing agents recognize—is that trying to influence an applicants’ decisions because they’re LGBTQ+ is strictly illegal, regardless of motive. 

Rule #7: Don’t Discriminate Against Current LGBTQ+ Tenants

Risk of discrimination continues after rental LGBTQ+ applicants sign a lease and move into the community to the extent you treat them less favorably during their tenancy, such as by charging a same-sex couple higher rents or extra fees because they’re gay. Discriminatory pitfalls to avoid include: 

• Refusing to make repairs or provide other building services; 
• Telling gay tenants not to engage in public displays of affection in common areas while not objecting to straight tenants who engage in the same behavior; 
• Not letting non-binary tenants use the common area restrooms; 
• Not allowing non-binary tenants to list their preferred names on building security intercoms or door plates;
• Not letting tenants use common restrooms suitable for the gender they assert, such as by forcing a transgender tenant who self-identifies as female to use the men’s restroom; and
• Excluding tenants from club houses, pools, gyms, or other common areas or amenities because of their sexual preference or gender identity or expression.

Rule #8: Protect LGBTQ+ Tenants Against Harassment

Nonconventional sexual preferences and gender identification make LGBTQ+ people a target for harassment. You may be legally responsible for this behavior when it happens in your building, even if you don’t engage in it yourself. Explanation: Landlords have a legal duty to protect tenants from discriminatory harassment engaged in by third parties under their control, including leasing agents, property managers, maintenance staff, and other building personnel. 

Example: A property manager subjected a gay tenant to a continuing barrage of verbal abuse, much of it in public such as when he climbed an outdoor balcony across the way from the tenant’s unit and yelled, “God hates faggots.” He also kicked the tenant in the groin. HUD filed sex and sexual orientation discrimination charges against both the manager and landlord. Result: The landlord had to pay $40,000 in damages [U.S. v. Leaf Property Investments, LLC, U.S. Dist. Ct., E.D. Wis., 2024]. 

You can also be held liable if you know a tenant is suffering discriminatory harassment at the hands of another tenant and don’t take action to stop it. 

Example: Over a 15-month period, an openly lesbian tenant of a senior housing community was mercilessly harassed by her neighbor because of her sexual orientation. The landlord not only ignored the tenant’s complaints but actually contrived a plan to evict her. In a landmark ruling, the Illinois federal court held the landlord liable for the tenant’s harassment. The FHA ban on sex discrimination requires landlords who become aware of LGBTQ+-based harassment by one tenant against another to step in and protect the victim, the court reasoned [Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7^th Cir. 2018)]. 

BEST PRACTICE

Implement Anti-LGBTQ+ Harassment Policy 

All landlords should have a written non-harassment policy that bans harassment based on sexual orientation, gender identity, and gender expression. The policy should apply to building employees, tenants, and vendors and include at least the following elements:  

• A statement of policy that condemns harassment and expresses your company’s commitment to provide a respectful housing environment for all tenants;
• A clear and broad definition of “harassment” as including any “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person,” accompanied by a list of examples; 
• A process or mechanism that tenants can use to report the LGBTQ+ and other forms of harassment they experience or witness; 
• Assurances that tenants will suffer no retaliation of any kind for reporting harassment in good faith; 
• Protocols and procedures for responding to, investigating, and resolving LGBTQ+ and other harassment complaints; and
• Language indicating that wrongdoers will be held accountable for any harassment they commit; and
• Clarification that filing an LGBTQ+ harassment complaint with you doesn’t take away a tenant’s right to file a housing discrimination complaint with HUD or state fair housing agencies.

Rule #9: Keep Information About Sexual & Gender Preferences Confidential

Treat any information that applicants and tenants share with you about their sexuality or gender identification as highly confidential. Don’t disclose the information to staff, neighbors, tenants, and other third parties without express written consent, except where disclosure is required for law enforcement or other specific purposes listed in the law. Be especially sensitive to the confidentiality of tenants who have or are in the process of “transitioning” to a different gender, whether by surgery, hormone treatment, or non-medical processes. 

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