HUD Offers Latest Obama Administration Attempt To Strengthen LGBT Rights Through Regulation

Obama Administration Pushing To Strengthen LGBT Housing Rights Through Regulation

NEW YORK -- The Department of Housing and Urban Development unveiled a series of proposed rules on Thursday designed to protect lesbian, gay, bisexual and transgender individuals from discrimination when applying for federal housing assistance. The HUD proposal marks the latest in a string of Obama administration attempts to enhance gay rights through federal regulation, which may offer a way forward for advocates who worry that legislative efforts have little hope of success this year.

Citing reports that LGBT individuals and families "are being arbitrarily excluded from some housing opportunities in the private sector," the proposed regulation would prohibit lenders from using sexual orientation or gender identity to determine a borrower's eligibility for Federal Housing Administration-insured mortgage financing. Owners and operators of HUD-assisted housing -- or housing whose financing is insured by HUD -- would also be barred from inquiring about the sexual orientation or gender identity of an applicant.

"This is a fundamental issue of fairness," HUD Secretary Shaun Donovan said in a statement. "We have a responsibility to make certain that public programs are open to all Americans. With this proposed rule, we will make clear that a person's eligibility for federal housing programs is, and should be, based on their need and not on their sexual orientation or gender identity."

The HUD announcement comes just two days after new regulations granting LGBT Americans and their families more control over hospital visitation rights went into effect. On April 15, President Barack Obama directed Health and Human Services Secretary Kathleen Sebelius to initiate that rulemaking process.

In early January, the State Department also decided to make U.S. passport forms more "gender-neutral," a change that gay-rights advocates had been pushing for in light of the children in same-sex families who may not have a traditional "mother" and "father." Reflecting how quietly many of these changes go through -- as opposed to the significant fanfare regarding the repeal of "don't ask, don't tell" -- the change was actually made in December but went largely unnoticed for a couple of weeks.

Gay-rights advocates don't expect to see significant legislative victories akin to DADT repeal in 2011, since the House is now controlled by a Republican majority that hasn't expressed any interest in moving forward on LGBT rights. Much of the action, they expect, will take place in state legislatures or in the judiciary.

But there may also be opportunities for progress in federal agencies, which likewise do not require the final approval of Congress. Some other highlights of the regulatory changes by the Obama administration to date:

-- June 17, 2009: Obama signs a memorandum expanding federal benefits for the same-sex partners of Foreign Service and executive branch government employees.

-- Oct. 21, 2009: HHS creates a National Resource Center for LGBT Elders.

-- April 27, 2010: The Justice Department issues a memo stating that that federal prosecutors should enforce criminal provisions in the Violence Against Women Act in cases involving gay and lesbian relationships.

-- June 9, 2010: The State Department announces that when a passport applicant presents a certification from an attending medical physician that the applicant has undergone appropriate clinical treatment for gender transition, the passport will reflect the new gender. It is also possible to obtain a limited-validity passport if the physician's statement shows the applicant is in the process of gender transition. Sexual reassignment surgery is no longer a prerequisite for passport issuance.

-- June 22, 2010: The Labor Department clarifies the definition of "son and daughter" under the Family and Medical Leave Act to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.

-- Oct. 26, 2010: The Department of Education issues guidance to support educators in combating bullying in schools by clarifying when student bullying may violate federal education anti-discrimination laws.

-- Dec. 21, 2010: The United Nations adopts a U.S. sponsored amendment to restore "sexual orientation" to a resolution on Extrajudicial, Summary, and Arbitrary Executions.

Brian Moulton, the Human Rights Campaign's chief legislative counsel, said that while some of these changes may seem small compared to prominent bills pushed through Congress, they're major steps forward for the people affected.

"Individually, if you're not a person particularly impacted by a federal housing program or a federal domestic violence law, or you're not a federal employee, and the regulatory change doesn't necessarily apply to you directly, it might not seem all that important," Moulton said. "But one of the rules instituted earlier last year was extending sick leave and long-term care insurance to the partners of federal workers. Well, if you're a federal employee or the partner of a federal employee, and you have a serious illness and need your partner to be able to take time off to take care of you, that's certainly going to have an incredible impact on your life."

HRC released a "Blueprint for Positive Change" during Obama's transition into office, recommending a variety of ways the federal executive branch could improve the lives of LGBT Americans. Moulton said that while he hopes the administration continues to move forward with regulatory changes, officials may be hesitant to push too far and run up against objections from Republicans in Congress.

"It's worth acknowledging that there's both more of a focus on these sorts of things when there isn't an opportunity to move more legislatively, but also the fact that a Republican Congress might want to exercise greater oversight on the regulatory process," Moulton said. "There's the Congressional Review Act, so they have the ability to potentially interfere with new regulations and obviously they've been talking a lot about oversight hearings on anything and everything they can think of. So certainly there might also be some reticence by the administration to beat the Republicans in the House by moving forward with regulations that might be considered controversial."

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