You’ve probably heard a lot recently about controversy surrounding discrimination against the LGBT community, and the right asserted by some vendors to refuse to cater same sex weddings.
The legal aspects of the subject are complex, as both state and federal laws come into play, but it is vital that property owners understand them.
Of course, the wisest course of action for rental property owners looking to avoid LGBT housing discrimination is to avoid taking any action that could be construed as discriminatory, period. If you mess up and inadvertently run afoul of laws and regulations that protect LGBT individuals or members of any other protected class, you may face significant fines and penalties.
Background to the Recent LGBT Discrimination Controversy
The aforementioned controversy arose because the State of Indiana passed a law modeled on the federal Religious Freedom Restoration Act, which President Clinton signed into law in 1993. The RFRA directed courts to consider as a possible defense the defendant’s claim that his or her religious liberties would be “substantially burdened” by complying with a law. It was intended to be a potential shield against lawsuits, but provides no specific shield against claims brought in private discrimination lawsuits.
The Indiana version of the RFRA, however, does explicitly allow religiously-observant individuals and closely-held businesses to use it as a defense against private lawsuits. The controversy began in earnest shortly after this law was passed when a woman interviewed by an Indianapolis television station said her family’s pizza restaurant would serve anyone, including gays and lesbians, but as a Christian business they would not want to cater a same-sex wedding.
How Federal and State Laws View LGBT Housing Discrimination
Let’s take a look at how federal and state laws view property owners who refuse to provide housing to LGBT individuals.
Under federal law, the Fair Housing Act prohibits you from discriminating against potential renters on the basis of race, color, religion, sex, national origin, disability or familial status. LGBT individuals are not specifically listed as protected classes under federal law.
However, there are still a number of ways you could be found guilty of discriminating against LGBT individuals under federal law. Here are three:
- The Justice Department has announced that they will construe the term “sex” in federal law to include gender discrimination, including discrimination against transgendered individuals.
- The Housing and Urban Development Secretary Shaun Donovan has publicly stated that “housing discrimination because of nonconformity with gender stereotypes – essentially gender identity discrimination – is sex discrimination under the Fair Housing Act.”
- An adventurous federal district attorney could potentially assert the “familial discrimination” charge against you.
So while federal law does not explicitly prohibit discrimination against LGBT individuals, the current general legal climate allows for the expansion of LGBT rights, even over assertions of private property rights and religious objections.
Regardless of whether homosexual individuals are a protected class under federal law, they are specified as a protected class in a number of individual states. These states are California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin.
It is important to note that some states prohibit discrimination against gays and lesbians but do not specifically prohibit discrimination against transgender individuals. These states are New Hampshire, New York and Wisconsin.
In addition, the following major metropolitan cities (among many other cities) have banned discrimination based on sexual orientation within their city limits: Atlanta, Chicago, Detroit, Miami, New York, Pittsburgh, Seattle and St. Louis.
It is also possible that while your state is one of the 28 nationwide that does not have a specific prohibition against discriminating on the basis of sexual orientation or transgender status, your state housing enforcement agencies could possibly interpret prohibitions against sex or gender discrimination broadly to include gender identification and enforce such laws against you.
Religious Objections As a Defense Against Discrimination Lawsuits
The answer to this question comes down to whether your state has a version of the RFRA, and whether it applies to private lawsuits as well as state enforcement. It also depends, at this point, on the luck of the draw. Some courts have upheld the right to refuse to rent to unmarried couples (in North Dakota, for example), and some courts have prohibited discrimination on that basis (Alaska).
It would be unwise to push it, though, because of the current expansive mood of the U.S Department of Justice on the federal level, and because public opinion – and therefore the jury pool – is shifting in favor of having a broad interpretation of the rights of LGBT individuals. For the most part, courts are likely to find that property owners have no legal interest in what tenants do in their rented homes as long as they care for the property and are likely to pay rent as scheduled.