Following the Supreme Court’s decision in Bostock v. Clayton County in 2020 and Executive Order 13988 issued January 20, 2021, federal and state agencies are revising their interpretation of “sex discrimination” to include discrimination on the basis of gender identity and sexual orientation.
On February 11, 2021, the U.S. Department of Housing and Urban Development (HUD) published a memorandum that details changes in how the Office of Fair Housing and Equal Opportunity (FHEO) will interpret sex discrimination under the Fair Housing Act (FHA). The memorandum instructs the FHEO to interpret and enforce the FHA’s prohibition on sex discrimination to include discrimination on the basis of sexual orientation or gender identity. The FHEO will accept and review claims for sex discrimination in light of this updated definition. Additionally, Fair Housing Initiative Program participants will be required to interpret the FHA in line with HUD’s updated definition. Lastly, the memorandum instructs the FHEO to investigate any claim with a reasonable basis for discrimination.
Similarly, on May 10, 2021, the U.S. Department of Health and Human Services (HHS) issued a notice to clarify its interpretation and enforcement of Section 1557 of the Affordable Care Act (ACA). Section 1557 of the ACA prohibits discrimination based on race, color, national origin, sex, age, and disability in covered health programs or activities. In its notice, HHS clarifies that its interpretation of “sex discrimination” also is expanding to encompass discrimination based on sexual orientation and gender identity. As such, the Office for Civil Rights (OCR) at HHS will now interpret and enforce Section 1557’s prohibition on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. The OCR stated in its notice that it will interpret and enforce this expanded definition consistent with the provisions of the Religious Freedom Restoration Act, relevant court orders relating to the Section 1557 regulations, and any other legal requirements that may arise.
It is important to note that the Pennsylvania Human Relations Commission (PHRC) interprets sex discrimination under the Pennsylvania Human Relations Act to include, among other categories, sexual orientation and gender identity. The PHRC accepts sex discrimination complaints from individuals alleging discrimination based on sexual orientation. The PHRC’s guidance has been in effect since August 2018.
From a compliance and risk management perspective, housing providers and covered entities under Section 1557 should review their current admission policies, procedures and practices in light of these expanded interpretations.
If you have any questions regarding the recently issued HUD memorandum and/or HHS notice, or would like assistance in reviewing and/or revising your admissions policies and procedures to conform to these interpretations, please feel free to contact Dayna E. Mancuso, Esq. (dmancuso@ldylaw.com) at 717-620-2424.