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Realty Management Associates Blog

Fair Housing

Athena Savoglou - Monday, March 25, 2019
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Fair Housing.  This is a term that we have all heard, but what does it mean?  What exactly does “fair” mean in this context?  Who gets the benefit of fair housing?  

The Fair Housing Act was passed federally in 1968.  It prohibits owners and landlords from denying housing to someone based on his or her race, color, religion, national origin, sex, disability or familial status.  As the statute is rooted in civil rights, an owner or landlord can be held accountable by law for violating this statute.  Therefore, these seven protected classes have become the hallmark of constitutional challenges alleging housing discrimination.

Although there is a federal statute on the matter, fair housing issues are often decided at the state level.  States must, at the minimum, obey the federal statute.  However, a state may expand on the federal statute (i.e. add more protected classes that may not be the basis for a denial of housing).  For example, a state may add that an owner or landlord may not deny housing to someone based on his or her marital status.  As a side note, familial status does not cover denials based on marital status, it concerns mostly the age of children, pregnancy, and alternative family structures, e.g. adopted children.  In a state with this statute, there would be eight protected classes in housing.

Noticeably absent from the federal statute is protection of the gay community, known more accurately as the LGBTQ community.  LGBTQ stands for people who identify as Lesbian, Gay, Bisexual, Transsexual/Transgender and Queer/Questioning.  In other words, under the federal statute, an owner or landlord may freely discriminate against someone due to their sexual orientation or gender identity.  Under the federal statute, a member of the LGBTQ community has no legal recourse against an owner or landlord who refuses them on this ground alone.

Although there is no recourse under the federal Fair Housing Act, as mentioned above, a state may add a protected class to its fair housing law.  In fact, 22 states, including Minnesota, Colorado, and Iowa, have added the LGBTQ community to their fair housing statute, prohibiting denial of housing due to sexual orientation or gender identity.  However, there are still 28 states that have not put such a provision in place, including Idaho.  This leaves members of the community legally unprotected when facing discrimination with respect to housing and otherwise.

Because Idaho’s state legislature has refused to update the state’s antidiscrimination law to include protection of the LGBTQ community, certain municipalities within the state have taken it into their own hands.  As of late 2018, 13 cities in Idaho have passed these antidiscrimination provisions, also known as “add the words” ordinances.  The nickname “add the words” is an homage to the fact that the LGBTQ community has long been absent in antidiscrimination laws, both federal and at the state level.  

In fact, last September, Meridian became the most recent city in Idaho to pass an ordinance prohibiting discrimination against someone for their gender identity or sexual orientation.  Under this ordinance, the victim of such discrimination may press charges, and the violator may face an infraction and fine up to $250.  Furthermore, other cities have harsher penalties for discrimination—In Boise, discriminating on a protected ground (including LGBTQ status) is punishable as a misdemeanor which carries a penalty of $1,000 and up to six months in jail.  Other cities with similar antidiscrimination ordinances in place are Ketchum, Pocatello, and Victor, among others.

Although civil rights are usually supported by the majority of the population, protection of the LGBTQ community has been met with some opposition.  Some displeasure is rooted in political leanings, but another common gripe among opponents is that the ordinances infringe on religious freedom.  The worry is that someone may be forced to go against his or her religious beliefs due to the laws’ provisions.  However, most ordinances—specifically Meridian’s—exempt religious entities.  In other words, a religious entity is not required to accept or do business with anyone they view as violating their tenets.  

While there has been some discontent with the inclusion of the LGBTQ community as a protected class in discrimination laws, most support “add the words” ordinances.  As the mayor of an Idaho town who passed the ordinance put it, “It doesn’t matter, Republican or Democrat, people believe people should have equal rights . . . I would say 90 percent of the community is for this ordinance.”


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