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The Intersection of LGBT-Friendly Housing and the Fair Housing Act: A Policy of Neutrality
posted 08.04.2015

By Bill Skalitzky

The email from my client caught my attention. It came more than a year after we had closed financing for the “LGBT-Friendly” Town Hall Apartments in Chicago. Town Hall Apartments provides housing for low-income older adults (ages 55 and older) a few blocks from the ivy-covered outfield walls at Wrigley Field. The building’s Tenancy Policy Statement is straightforward:

“All housing decisions will be made in accordance with the Fair Housing Act and without regard to actual or perceived sexual orientation, gender identity or marital status in accordance with applicable federal regulations, state law and local ordinances.”

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The email asked a simple question: are we being too cautious in how we talk about Town Hall Apartments? Attached to the email was an article from The Washington Post with the headline, “A Philadelphia apartment building may be a national model for low-income LGBT seniors.” The first paragraphs of the article described the opening of an affordable housing project in Philadelphia that “caters to low-income seniors in the lesbian, gay, bisexual and transgender, or LGBT, community (emphasis added).” In contrast, all tenancy decisions at Town Hall Apartments are made with strict neutrality and without regard to an applicant’s gender identity or sexual orientation—the antithesis of catering to the LGBT community. The email question captured the clash between community perception and legal reality.

While the Fair Housing Act prohibits discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin, it does not preclude discrimination based upon gender identity or sexual orientation. However, the Illinois Human Rights Act prohibits discrimination in rental housing based on, among other factors, sexual orientation, which is defined as “actual or perceived heterosexuality, homosexuality, bisexuality or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.” In addition, the city of Chicago Fair Housing Regulations and Human Rights Ordinance prohibit discrimination based on gender identity and sexual orientation, among other factors. The gap in the federal Fair Housing law was thus filled by state and local law.

It is critically important that Town Hall Apartments’ comply with federal and all substantially equivalent state and local fair housing laws, because one of the primary financing sources for the building is the federal low income housing tax credit. Pursuant to a Memorandum of Understanding among the United States Departments of Justice, Housing and Urban Development (HUD) and Treasury (IRS), these low-income housing tax credits can be lost upon a documented violation of federal, state or local fair housing laws.

In addition to the federal tax credits, all of the units in Town Hall Apartments receive project-based Section 8 housing choice vouchers, a form of rental subsidy needed to generate sufficient revenue to pay the building’s operating costs (because the tax credits impose rent restrictions and thereby necessarily limit the amount of rent that can be received from tenants). These Section 8 vouchers also require strict neutrality when making tenancy decisions pursuant to the “Equal Access to HUD-Assisted or Insured Housing” regulations recently adopted by HUD in February 2012. These regulations prohibit discrimination in HUD-assisted or HUD-insured housing projects based upon marital status, sexual orientation or gender identity, and were developed in response to “evidence suggesting that LGBT individuals and families do not have equal access to housing.” The regulations do not, however, amend the Fair Housing Act or add sexual orientation or gender identity as protected classes under the Act, and apply only to HUD-assisted or insured housing.

When we started work on Town Hall Apartments, we understood that our client wanted to address prior housing discrimination suffered by members of the LGBT community, and, if possible, promote this new building as housing for older LGBT persons. However, the foregoing federal, state and local statutory, regulatory and related requirements demonstrate that a preference or priority could not be extended to an applicant based on his or her gender-identity or sexual orientation. These statutory and regulatory requirements create a tightrope over which the Town Hall Apartments property manager must constantly balance when making a tenancy decision.

A compromise had to be created between our client’s aspirations and legal reality. The result is the designation of Town Hall Apartments as “LGBT friendly”—an indication that members of the LGBT community are invited to apply for housing at the building, but without a promise offered or extended of any special status or treatment versus any other applicant. All marketing and property management documents relating to Town Hall Apartments set forth the unequivocal tenancy policy of neutrality. While the Chicago press and neighborhood community may perceive Town Hall Apartments as LGBT housing, legally and functionally it is not.

The Washington Post article points out the importance of carefully choosing words when describing LGBT projects and programs that receive public funding. Their use of the word “cater” might imply to some that the Philadelphia development is giving special treatment to LGBT individuals when that is not the case.

Interestingly, the final section of the Washington Post article described the Philadelphia project in much the same terms as Town Hall Apartments’ tenancy policy: “[t]he housing project has been classified as ‘LGBT friendly,’ so it does not exclude anyone.” After reading the article and reviewing the applicable statutory and regulatory regulations, we are not being too cautious with Town Hall Apartments. We are following the requirements of the law.

Bill Skalitzky is an attorney with Applegate & Thorne-Thomsen, P.C., a Chicago law firm that focuses on the development of affordable housing and the economic redevelopment of communities through the federal low income housing tax credit, the new market tax credit and other public and private financing sources. Feel free to contact Bill at 312-491-3329 or

This article was brought to you by ASA's LGBT Aging Issues Network.

Check your mailbox (and online) in early November for Aging Today’s In Focus section called “A Place to Call Home: Where Will We Live as We Age,” for more important articles on the evolution of elder housing, from low-income options to the psychology of moving to creative solutions for older adults who would rather age-in-place. 

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