Chapter: Which of the following is NOT a protected class under Maryland Fair Housing Law, but is protected under Federal Fair Housing Law? (EN)

Chapter: Which of the following is NOT a protected class under Maryland Fair Housing Law, but is protected under Federal Fair Housing Law? (EN)

Understanding Fair Housing Laws: A Comparative Analysis

Fair Housing Laws at both the federal and state levels aim to prevent discrimination in housing-related transactions. However, the scope of protected classes can differ. This chapter delves into these discrepancies, focusing on a specific protected class under Federal Fair Housing Law that is not explicitly protected under Maryland Fair Housing Law.

Federal Fair Housing Act (FFHA)

• The FFHA, enacted as Title VIII of the Civil Rights Act of 1968, prohibits discrimination based on:

  • Race
  • Color
  • Religion
  • Sex
  • National Origin
  • Familial Status (presence of children under 18)
  • Disability

Maryland Fair Housing Law

• Maryland’s Fair Housing Law expands upon the FFHA to include additional protected classes.

• It prohibits discrimination based on the following characteristics:

  • Race
  • Color
  • Religion
  • Sex
  • National Origin
  • Familial Status (presence of children under 18)
  • Disability
  • Marital Status
  • Sexual Orientation
  • Gender Identity or Expression
  • Source of Income

The Key Difference: Sexual Orientation and Gender Identity

A crucial difference lies in the specific protection of sexual orientation and gender identity or expression. Maryland’s Fair Housing Law explicitly includes these categories, whereas the Federal Fair Housing Act does not explicitly name them.

Evolution of Interpretation and Protection

• Historical Context: The FFHA was enacted in 1968, before widespread societal recognition and legal protection of LGBTQ+ rights.

• HUD’s Interpretation: The Department of Housing and Urban Development (HUD), the agency responsible for enforcing the FFHA, has increasingly interpreted the law to include protection against discrimination based on sexual orientation and gender identity under the umbrella of “sex discrimination.”

  • The “Sex Discrimination” Argument: HUD’s position rests on the premise that discrimination based on sexual orientation or gender identity is inherently linked to sex stereotypes and gender nonconformity. For example, discriminating against a same-sex couple might be considered sex discrimination because it treats individuals differently based on the gender of their partner. Similarly, discriminating against a transgender individual is related to their not conforming to traditional gender roles.
  • Legal Precedents: Court cases have provided varying results. Some courts have accepted HUD’s interpretation, while others have been less willing to expand the definition of “sex” to include sexual orientation and gender identity in the absence of explicit Congressional action.

  • Example of the Argument: Consider the mathematical representation using simple boolean logic:

  • Let D(x) represent a discriminatory action against individual x.

  • Let SO(x) represent the sexual orientation of individual x.
  • Let Sex(x) represent the assigned sex of individual x at birth or the gender identity of individual x.

  HUD is essentially arguing that D(x) based on SO(x) or GenderIdentity(x) implies D(x) based on Sex(x), making it indirectly prohibited under existing law. This can be represented as:

  • D(x) ∧ (SO(x) ≠ Heterosexual ∨ GenderIdentity(x) ≠ AssignedSex(x)) → D(x) ∧ (Sex(x) = Male ∨ Sex(x) = Female).

  However, the strength of this implication varies based on legal interpretation and specific circumstances.

Practical Implications

1. Maryland landlords: In Maryland, landlords cannot legally discriminate against potential tenants based on their sexual orientation or gender identity. This is explicitly stated in the state’s Fair Housing Law.
2. Federal level: While HUD is actively working to protect LGBTQ+ individuals under the FFHA, the legal landscape is still evolving. There remains the possibility of legal challenges and differing interpretations across jurisdictions.
3. Experiment: Testing for Discrimination: A potential (albeit unethical and illegal in Maryland) “testing” experiment could involve sending similarly qualified housing applicants to inquire about the same rental property. The only difference is that some applicants openly identify as LGBTQ+ while others do not. Comparing acceptance rates and treatment can reveal discriminatory practices. Of course, this would be illegal in Maryland due to the explicitly protected status of sexual orientation and gender identity.
4. Training & Awareness: The importance of this distinction highlights the need for comprehensive training for landlords, property managers, and housing providers to ensure compliance with both federal and state laws.

Breakthroughs and Discoveries: Understanding the Shift in Legal Interpretation

• Obergefell v. Hodges (2015): The Supreme Court’s landmark decision legalizing same-sex marriage nationwide has indirectly influenced the interpretation of anti-discrimination laws, fostering a broader acceptance of LGBTQ+ rights.
• Increased Advocacy: LGBTQ+ advocacy groups have played a crucial role in raising awareness and lobbying for legal protections at both the federal and state levels.
• Data and Research: Studies documenting the prevalence of housing discrimination against LGBTQ+ individuals have provided empirical evidence to support the need for stronger legal protections.

Conclusion

While the Federal Fair Housing Act does not explicitly list sexual orientation and gender identity or expression as protected classes, Maryland’s Fair Housing Law does. The interpretation of “sex discrimination” under the FFHA is evolving, and HUD is working to extend protections to LGBTQ+ individuals. However, the legal landscape is complex and varies by jurisdiction. Therefore, understanding the nuances of both federal and state laws is essential for ensuring fair housing practices.