Tenant Rights Against Sexual Orientation or Gender Identity Discrimination

Most 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, some landlords are nosy or flat-out prejudiced. For example, a prospective landlord might ask pointed questions when you apply for a rental ("Are you two, like, together?"), or a current landlord might send you a termination notice upon discovering that your relationship with your roommate is not platonic.

How you can respond to these forms of housing discrimination depends on whether:

• the state or city where you live has established legal protections that will help you
• the discrimination takes place when you're applying for a rental or during the rental, and
• you have a long-term lease or a month-to-month rental agreement.

Does the Law Where You Live Provide Sexual Orientation and Gender Identity Protection?

Federal law does not protect gays, lesbians, or transgender people from discrimination by landlords. The U.S. Department Housing and Urban Development (HUD), though, does require HUD-assisted and HUD-insured housing programs to be available to all, regardless of sexual orientation, gender identity, or marital status.

The Supreme Court decision holding that same-sex couples have the right to marry, Obergefell v. Hodges, decided June 29, 2015, did not protect married, same sex-couples from discrimination at the hands of private individuals. And the decision 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.

For protection against sexual orientation and gender identity housing discrimination, you will need to look to your state or local government.

State and Local Housing Discrimination Laws

Many state and local laws address one or more of the following forms of discrimination.

• Sexual orientation discrimination. Discrimination that is based on the person's actual or perceived sexual orientation.
• Gender identity discrimination. Discrimination that is based on the person's internal understanding of their gender or on another's perception of their gender identity.
• Gender expression discrimination. Discrimination that is based on the person's gender-related appearance and behavior, whether or not this expression is stereotypically associated with the person's assigned sex at birth.

Each law has its own definition of these protected classes—check the law carefully to see exactly what is covered.

Several states and cities prohibit sexual orientation housing discrimination. Many of these same states and cities also prohibit gender identity and gender expression housing discrimination. Some laws differentiate between gender identity and gender expression discrimination; others lump the two forms of discrimination together. You'll want to check your state and local laws to find out whether they prohibit one, two, or all three of these forms of discrimination.

State and local laws change frequently. To find out the current status of bans on sexual orientation, gender identity, and gender expression housing discrimination in your state, check out HUD's state law chart, which contains contact information for the state agency tasked with enforcing the law. Craigslist has also compiled a list of state fair housing laws. For city and local information, check out the Human Rights Campaign's Municipality Database—you can search for your city or zip code to find out the current status of protections against housing discrimination. Finally, you can also contact the National Gay and Lesbian Task Force for more information.

What to Do When You Encounter Sexual Orientation or Gender Identity Discrimination

The timing of the discriminatory behavior directly affects what remedies you might have. As discussed below, you have limited options if the discrimination occurs at the application stage. However, if you experience discrimination after you've signed a lease or rental agreement, you have a number of options for fighting back.

When 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. Most of the time, the landlord either doesn't tell you why you were rejected or invents a reasonable-sounding, nondiscriminatory explanation to conceal the true (discriminatory) reason. If the landlord's refusal was clearly based on a discriminatory reason that is illegal in your location, you could pursue a claim under the state or local law.

If you don't live in a state or city that extends protection, there's not much you can do. You could try to reason with the landlord, but, realistically speaking, you probably won't want to rent from someone who's already demonstrated such hostility.

When Your Landlord Tries to Break Your Lease

If you have a lease, your tenancy cannot be terminated until the lease expires unless you have broken an important lease clause (such as failing to pay rent or violating 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.

When Your Landlord Tries to End Your Month-to-Month Rental Agreement

Renters with month-to-month rental agreements might be in greater danger of eviction. Landlords can terminate month-to-month tenancies 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 might 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 areas with rent control, however, might fare better—most rent control laws also have eviction protection rules prohibiting 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 enumerated "just causes" in the rent control or eviction protection law.

For More Information

Nolo's A Legal Guide for Lesbian & Gay Couples, by Emily Doskow and Frederick Hertz, is a practical guide that contains the latest legal information and legislation same-sex couples need to protect and exercise their rights. Nolo's LGBTQ Law section also contains a wealth of articles addressing laws and rules that might affect members of the LGBTQ community.