Most sensible landlords care more about whether you pay the rent on time and take good care of the property than they do about your sexual orientation. Unfortunately, you may encounter some landlords who are inappropriately nosey or flat-out prejudiced. In these cases, you should be aware of your tenant rights.
You may be asked pointed questions when you apply for a rental ("Are you two, like, together?") or you may receive a termination notice from a landlord who has just learned that your relationship with your roommate is not platonic. What you can do in response depends on three things:
- whether the state or city where you live has established legal protections that will help you
- whether the discrimination takes place when you're applying for a rental or during the rental, and
- whether you have a long-term lease or a month-to-month rental agreement.
If a Landlord Won't Rent To You
If you are denied a rental at the application stage, in many cases there's not much you can do about it. Federal law does not protect gays, lesbians, or transgender people from discrimination by landlords. (The Supreme Court decsion invalidating the Defense of Marriage Act, United States v. Windsor, 570 U.S. ___ (2013), only decreed that the federal government may not discriminate between heterosexual and same-sex couples when it comes to federal benefits. It left intact the ability of states to recognize same-sex marriage or not.)
Several states, however, do have laws that prohibit sexual orientation discrimination and gender identity: California, Connecticut, Colorado, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Also, three states prohibit discrimination on the basis of sexual orientation (but not transgender identity): New Hampshire, New York State, and Wisconsin. In addition, many cities have passed laws that make discrimination on the basis of sexual orientation and gender identity illegal, including Atlanta, Chicago, Detroit, Miami, New York City, Pittsburgh, and Seattle. For more information on state or local laws, contact the National Gay and Lesbian Task Force.
If you don't live in a state or city that extends protection, there's not much you can do besides, perhaps, attempting to reason with the landlord.
If Your Landlord Tries to Break Your Lease
If you encounter discrimination after your tenancy has begun, the picture may improve dramatically.
If you have a lease, your rental cannot be terminated until the lease term is over unless you have broken an important lease clause (such as failing to pay rent or keeping a pet in violation of a no-pets rule), or you have committed an illegal act. Most lease clauses do not expressly address whom you share your bed with, and most states have tossed out their anti-sodomy and fornication laws after the Supreme Court said such laws were unconstitutional. So, as long as your lease has no clause prohibiting certain types of sexual behavior, a landlord who attempts to evict you solely on the grounds of your sexual orientation would have a hard time succeeding. This result would be true even for renters who live in cities or states that don't prohibit sexual orientation discrimination. Those that live in states that do would have an even stronger case.
If Your Landlord Tries to End Your Month-to-Month Rental Agreement
Renters with month-to-month rental agreements may be in greater danger of eviction. In a month-to-month tenancy, a landlord may terminate the agreement by giving the required notice, which is 30 days in most states. The landlord need not give a reason for the termination. However, landlords are not allowed to terminate rental agreements for a discriminatory reason, so if you have protection against sexual orientation discrimination by virtue of a state or local law, you may be able to stop the landlord. If you aren't protected, the landlord is free to act based solely on whims or beliefs. Tenants in rent control situations, however, may fare better -- most rent control ordinances also have some kind of eviction protection rules, which prohibit termination of month to month tenants unless they have violated the rental agreement, have seriously broken the law (by selling drugs, for example), or the termination is based on ennumerated "just caues" in the rent control or eviction protection ordinance.
Landlords' Defense: Freedom of Religion
Landlords have attempted to trump antidiscrimination laws by relying on various state and federal freedom of religion laws. A court in Alaska prohibited this end-run, but another court in North Dakota allowed it. (Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (1994); North Dakota Fair Housing Council, Inc. v. Peterson, 625 N.W.2d 551 (2001).) In both cases, however, the courts were grappling with renting to unmarried heterosexual couples. There are no reported cases dealing specifically with a landlord's attempt to use a religious freedom law to protect sexual orientation discrimination.
For More Information
For a practical guide, updated with the latest legal information and legislation, that will help you (and your same-sex partner) protect and exercise your rights, see A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz and Emily Doskow (Nolo).