Biden’s Actions on Fair Housing

https://www.nar.realtor/washington-report/bidens-actions-on-fair-housing

January 29, 2021 By: Sehar Siddiqi

President Biden recently issued several actions related to ending discrimination and promoting fair housing and equal opportunity for all Americans. Included in these was the January 20,2021, Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and the January 26, 2021, Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies.

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

The executive order directs heads of federal agencies to examine previous agency actions and promulgate new actions to ensure that statutes prohibiting sex discrimination, including the Fair Housing Act, are implemented consistent with the Supreme Court’s 2020 holding in Bostock v. Clayton County.

In Bostock, the Supreme Court held that the prohibition on discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 encompasses discrimination based on sexual orientation and gender identity.

The order directs federal agencies to interpret all civil rights laws, including the Fair Housing Act, that include a prohibition on discrimination “because of sex” to include discrimination on the basis of sexual orientation and gender identity.

NAR supports including sexual orientation and gender identity as protected classes under the Fair Housing Act, having amended the NAR code of ethics to prohibit discrimination in real estate based on sexual orientation in 2010 and gender identity in 2013. NAR adopted policy in 2016 to support legislation that includes sexual orientation and gender identity as prohibited bases for discrimination under the Fair Housing Act.

Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies

The memorandum directs the federal government to redress its history of discriminatory housing and lending practices by actively combatting racial bias in rental and home-purchase transactions, eliminating barriers to housing choice, and supporting the development of safe, inclusive communities.

The memorandum specifically calls on the Department of Housing and Urban Development (HUD) to examine the Trump Administration’s repeal of the Affirmatively Furthering Fair Housing rule and the 2020 rule amending HUD’s interpretation of the Fair Housing Act’s disparate impact standard to determine if those actions had a detrimental impact on HUD’s duty to uphold the Fair Housing Act. Following that review, HUD is directed to ensure its programs and procedures are affirmatively furthering fair housing and fully enforcing the Fair Housing Act, including the prevention of practices with an unjustified discriminatory effect.

In 2020 NAR sent a comment letter asking for HUD to withdraw the rule to amend the interpretation of the Fair Housing Act’s disparate impact standard. NAR also sent comment stating its support of the Affirmatively Furthering Fair Housing requirement in the Fair Housing Act.

This is the text of the Executive Order:

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

January 20, 2021 • Presidential Actions

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.  Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.  All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

These principles are reflected in the Constitution, which promises equal protection of the laws.  These principles are also enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.).  In Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.  Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability.  For example, transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.

It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.  It is also the policy of my Administration to address overlapping forms of discrimination.  

Sec. 2.  Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation.  (a)  The head of each agency shall, as soon as practicable and in consultation with the Attorney General, as appropriate, review all existing orders, regulations, guidance documents, policies, programs, or other agency actions (“agency actions”) that:

(i)   were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations; and

(ii)  are or may be inconsistent with the policy set forth in section 1 of this order.

(b)  The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. 551 et seq.), consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order. 

(c)  The head of each agency shall, as soon as practicable, also consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order.  If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.

(d)  Within 100 days of the date of this order, the head of each agency shall develop, in consultation with the Attorney General, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law. 

Sec. 3.  Definition. “Agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5). 

Sec. 4.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)  the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

JOSEPH R. BIDEN JR.

THE WHITE HOUSE,
January 20, 2021.