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Prepared Remarks of Secretary Shaun Donovan Before the National Association of Gay and Lesbian Real Estate Professionals (NAGLREP)

At the National Association of Realtors Midyear Meeting
Wednesday, May 15, 2013

Thank you for that kind introduction Jeff.  I’d also like to thank the National Association of Gay and Lesbian Real Estate Professionals for inviting me to speak at your mid-year meeting.

As many of you know, last month we marked the 45th anniversary of The Fair Housing Act, passed as part of the 1968 Civil Rights Act.  This landmark law, enacted in the days following Martin Luther King’s assassination, has been called the last great legislative achievement of the 1960s civil rights movement.
The law prohibited discrimination in housing on the basis of race, color, national origin, and religion.  It applied to most housing and residential real estate related transactions, such as buying or renting a home, or obtaining a mortgage, regardless of whether a housing provider receives federal funding from HUD. In 1974, Congress added discrimination on the basis of sex to this list and in 1988, two more categories were added – disability and familial status.

As President Lyndon Johnson said upon signing the law in 1968, “the voice of justice speaks again. It proclaims that fair housing for all--all human beings who live in this country--is now part of the American way of life.”

A core part of HUD’s mission is to enforce and administer the Fair Housing Act through our investigations and legal resolution of the cases we file, which is no small task. Each year we receive approximately 9,000 complaints of housing discrimination.  And each year we resolve nearly half of those in a manner that achieves some form of relief for the complainant, either at the federal level or after referral to our state and local fair housing partners – usually through a negotiated conciliation or other method that serves to create a greater awareness among lenders and property owners so that they may correctly comply with fair housing laws going forward.

But even with this level of commitment and success, our work remains incomplete. Let’s remember that while the Fair Housing Act was groundbreaking for its time it also represents an evolving part our nation’s history. In fact, we still have a long way to go before we can say that all Americans are fully protected against discrimination under the Fair Housing Act. And perhaps no one is more keenly aware of the law’s current shortcoming than this audience.

The treatment of LGBT individuals might be called the latest chapter in this continuing evolution of the American people and our understanding of what we know is right and wrong.
It took 192 years after our nation’s founding to enact a law that embraces some of the most basic principles of human rights and equality. But even when it did so, that law was not a particularly comprehensive or organized legislative effort.

For example, the prohibition against discrimination on the basis of sex, now viewed as an essential part of our fair housing law, a basic tenet of our society, and key to our principles of equal rights--was not included in the original Fair Housing Act and was added by amendment in 1974. 
It took another 14 years for Congress to add key protections against other forms of discrimination in housing, such as those for individuals who are disabled, women who may be pregnant, or families with children.

Though long in coming, these additions were a welcome recognition that our nation’s understanding of what true equality continues to advance as our nation matures. It gives affirmation to the Rev. Martin Luther King’s comment that, “The Arc of the moral universe is long, but it bends toward justice.”
It is disappointing that we still see discrimination fairly often. But it is also redeeming that our story continues to be one of expanding civil rights and growing understanding of how behavior formerly viewed as acceptable is today seen not only as discriminatory but odious, with no place in a modern, civil society.
Indeed, our growing understanding that differences among people should not be a source of discrimination or segregation, but rather that our diversity is something to champion and promote, is an  important development. 

Our society’s growing understanding, for example, that individuals with disabilities are not people to be isolated, feared or deprived basic rights – while by no means complete--is proof of our nation’s developing maturity on these issues and a welcome addition to our moral and legal doctrine. 
It demonstrates our ability to evolve in our thinking on what constitutes “normal,” and “able”--and perhaps most importantly, the right and wrong way to treat our fellow human beings.

As President George H.W. Bush said upon signing the 1988 Americans with Disabilities Act, which further strengthened these protections, “Let the shameful wall of exclusion finally come tumbling down.”
Unfortunately, Congress has yet to amend the Fair Housing Act to include protections against discrimination because of sexual orientation.  Meanwhile, LGBT individuals regularly face discrimination, harassment, and even physical abuse in their daily lives, including in their ability to choose a place to live.
A recent study from Michigan, for example, found unequal treatment based on sexual orientation in 32 out of 120 fair housing tests--that’s a rate of more than 25%.

An even larger survey of nearly 6,500 transgender persons found that because they were transgender, 19 percent were refused housing, and 19 percent were homeless at some point.

This demonstrates the urgent need for these legal protections. I am hopeful that we are at the cusp of a new era of civil rights--of understanding and protecting the rights of LGBT persons.  In recent years, we’ve seen enormous changes in public opinion and public policy at both the state and federal levels.
On the question of marriage equality, for instance, progress is being made across the country, with state after state affirming the right of two individuals to marry. And we await a decision by the Supreme Court, which will have some impact on at least the timing of future developments.
 
As you know, President Obama and this administration have been unmatched in our efforts to ensure equal and fair treatment for gay, lesbian, bisexual and transgender people and communities.  In fact, this administration’s actions and policies might have seemed unachievable just a few years ago.
But, as the president has said, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.”

In 2010, the President signed legislation repealing Don’t Ask Don’t Tell, helping to end a discriminatory policy that made it impossible for LGBT individuals to serve in our nation’s military without fear of losing their jobs because of who they love.

Last year, the President and the Attorney General announced the administration would no longer defend Section 23 of the Defense of Marriage Act.

And in 2009, the President signed into law The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Legislation, which expands the coverage of Federal hate crimes law to include attacks based on a victim’s actual or perceived sexual orientation or gender identity.

The administration has also made numerous changes to ensure expanded and fairer health care access and coverage. This has included a directive from the President requiring all hospitals receiving Medicare or Medicaid funds to allow visitation rights for LGBT patients, provisions under the Affordable Care Act that eliminate discrimination in providing services to anyone who is lesbian, gay, bisexual or transgender, and the addition of millions of dollars for evidence-based interventions to address, among other issues, HIV-related health disparities.

To address housing needs for low-income persons who are living with HIV/AIDS and their families, HUD also manages the Housing Opportunities for Persons with AIDS Program (HOPWA), the only such Federal program dedicated to meet this need.

HUD and this administration have taken other historic steps in the area of housing to ensure that we fulfill our nation’s commitment to equality.

As part of its financial support for housing and urban development programs, HUD awards millions of dollars every year through competitive grant programs, funding that is announced by Notices of Funding Availability (or NOFAs). The NOFAs set the terms for the use of the funds and, as Secretary, I have substantial discretion to establish criteria to ensure their efficient and effective use.  We have long included a requirement that outstanding civil rights violations must be resolved prior to the application deadline for an applicant to be eligible to compete for funds. More recently, HUD has added to its requirements that an eligible grantee may not have outstanding civil rights violations of a state or local law prohibiting housing discrimination on the basis of sexual orientation or gender identity.
 
HUD has included similar anti-discrimination provisions in other areas. For example, some courts in Title VII civil rights challenges have applied principles of sex discrimination for gender stereotyping, which has provided limited but important civil rights protections for transgender individuals. Expanding on this in 2010, HUD formally adopted the principle that housing discrimination because of non-conformity with gender stereotypes – essentially gender identity discrimination – is sex discrimination under the Fair Housing Act.

This means that when HUD receives a fair housing complaint that alleges discrimination because someone looks in a way or conducts him or herself in a manner that does not conform to gender stereotypes, HUD now begins a formal investigation under the Fair Housing Act. Since issuing this guidance, HUD and our state and local partners in fair housing enforcement have investigated more than 150 discrimination complaints under this authority.

The following year we enacted an important rule:  Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity. The rule does four important things to ensure that LGBT persons are not excluded from HUD’s programs:

  • First, it creates a broad requirement that housing falling within these categories is made available without regard to actual or perceived sexual orientation, gender identity, or marital status.
  • Second, it clarifies HUD’s definitions of “family” and “household” and reaffirms that these include all persons regardless of actual or perceived sexual orientation, gender identity, or marital status.
  • Third, the rule prohibits those funded by HUD or insured by FHA from asking about an applicant or occupant’s sexual orientation or gender identity for purposes of housing eligibility.
  • And finally, the rule prohibits FHA approved lenders from basing eligibility determinations for FHA-insured loans on actual or perceived sexual orientation or gender identity.

HUD has pursued complaints under this authority as well. Earlier this year, HUD reached an historic settlement with Bank of America (BofA) on allegations that the mortgage lender had refused to provide financing to a lesbian couple and had illegally based its denial on the couple’s sexual orientation and marital status.

The couple had worked with BofA for several weeks to provide all of the necessary loan application documents. This included the applicant listing her partner’s mother as a co-applicant on the loan. They were assured by BofA that they were likely to receive a mortgage. One business day prior to closing, however BofA denied the mortgage because it did not consider the loan applicant and the co-applicant directly related because the state did not recognize same sex marriage. The result was that the couple was unable to close on the loan.

BofA settled by agreeing to pay the maximum possible penalty and, going forward, agreeing to notify its residential mortgage loan originators, processors and underwriters of the agreement with HUD.
This agreement is the first enforcement action taken against a lender under this new rule and sends a strong signal to the lending industry that we will not tolerate discrimination in HUD programs on the basis of sexual orientation, gender identity or marital status.

Moving forward, HUD will continue to aggressively investigate and prosecute these kinds of violations. And, using our research arm, we will study and monitor trends in fair housing. I’m pleased to announce that next month HUD’s Office of Policy Development and Research will release the first ever study of Housing Discrimination Against Same-Sex Couples.

This large-scale, paired-testing study will assess housing discrimination against same-sex couples in metropolitan rental-housing markets using advertisements on the Internet. The research is based on 6,833 e-mail correspondence tests conducted in 50 metropolitan markets across the United States from June through October 2011. I know it will be an important study both for what it tells us, and for the increased light it shines on this problem.

As I close, I want to thank you again for inviting me to be with you today and for being on the front lines on Fair Housing issues, particularly working to gain sexual orientation and gender identity protections in the NAR Code of Ethics. These protections would represent an important addition to NAR policy.
As President Obama said so movingly during his second inaugural address, “We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still, just as it guided our forebears through Seneca Falls and Selma and Stonewall.”

Your efforts in this area – not to mention your mere existence as an organization – represents how far we have come as a nation.  I urge you to continue your advocacy to further the cause of fair housing for LGBT individuals – and all Americans denied equal protection under the laws.  Together, we can we ensure our nation’s continuing and full evolution on this issue.

Thank you.