Last edited: February 14, 2005

Rental Discrimination Still a Fact of Gay Life

Gay Financial Network, December 12, 2002

By Russell Sommers

With so many basic legal rights carved out to include members of the gay community, it’s hard to imagine that discrimination in something as fundamental as housing still exists. But it does.

That’s because federal law does not protect gays, lesbians or transgendered people from discrimination by landlords. This means that in many areas of the country, if you’re denied a rental at the application stage, you may be out of luck.

However, several states and many cities have passed laws that do include protections for gay people in housing and public accommodations.

California, Connecticut, the District of Columbia, Massachusetts, Minnesota, New Jersey, Rhode Island, Vermont and Wisconsin have laws prohibiting discrimination against gays or lesbians; Connecticut, Minnesota and Rhode Island also protect transgendered people.

In addition, many cities have passed laws that make discrimination on the basis of sexual orientation illegal, including Atlanta, Chicago, Detroit, Miami, New York, Pittsburgh, St. Louis and Seattle.

When a Landlord Says "No"

A fair-minded (and intelligent) landlord should care more about whether you pay the rent on time and take good care of the property, than your sexual orientation. But prejudice is, unfortunately, alive and thriving.

Many GLBT people have been—and are still—refused rentals because the landlord or apartment manager determined that the applicant(s) were gay and were, therefore, unsuitable tenants; others have received termination notices from landlords who have learned that a tenant and his partner were more than just "roommates."

If you don’t live in a state or city that extends housing protections to gays and lesbians, there’s not much you can do besides, perhaps, attempting to reason with the landlord.

Failing this, you may consider fighting this kind of discrimination based upon two vital issues:

  • Whether the state or city where you live has established legal protections that will help you.
  • What kind of rental agreement you have.

Is it in the Lease?

If you encounter discrimination after your tenancy has begun, your own lease may be the very thing that protects you best. If you have a lease, your tenancy cannot be terminated 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 committed an illegal act.

Most lease clauses do not expressly address whom you share your bed with. In fact, most states have tossed out their anti-sodomy and fornication laws—although it’s still on the books in some 13 states (the legality of state’s sodomy laws is before the Supreme Court even now, with a ruling expected in June).

Nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. Texas, Kansas, Missouri and Oklahoma punish only homosexual sodomy.

As long as your lease has no clause prohibiting certain types of sexual behavior and you don’t live in a state that makes sodomy or unmarried sex illegal, 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 tenants 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.

Month-to-Month Rental Agreements Trickier

Tenants with month-to-month rental agreements, however, 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 doesn’t even need to give a reason for the termination, but he may not terminate for a discriminatory reason if you have anti-discrimination protection by virtue of a state or local law. If you aren’t protected, however, the landlord is free to act on his own bigoted whims or beliefs.

It’s not surprising to note that some landlords have attempted to trump anti-discrimination 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. 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.

Remember, if you encounter a problem with a landlord who you believe is exhibiting discriminatory behavior toward you based on your sexual orientation, check the local or state laws to see if you’re protected—and check your lease!

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