Update on “Gender Identity” as a Protected Category Under the Fair Housing Act - The Fair Housing Institute, Inc.

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A graphic showing scales along with symbols representing different genders with the title: A graphic showing a group of people in front of houses with the title: Does HUD Still Recognize Disparate Impact? A red banner is in the upper right corner with text saying: Update on “Gender Identity” as a Protected Category Under the Fair Housing Act

Update on “Gender Identity” as a Protected Category Under the Fair Housing Act

There are seven protected categories listed in the federal Fair Housing Act (FHA): race, color, religion, national origin, sex, familial status, and disability.  Gender identity is not one of these seven written into the law. However, over the years, HUD and some state and federal courts have interpreted the law to include gender identity as protected under the FHA. The (very simplified) reason for this interpretation is that discrimination on the basis of an individual’s gender identity is inherently related to their sex. 

In 2021, the former HUD administration published a Memo instructing HUD offices to begin enforcing the Fair Housing Act with the inclusion of gender identity as a protected category. This interpretation was enforced until the Memo was withdrawn by the current HUD administration in 2025.

The current HUD administration does not agree with the former administration’s interpretation of the Fair Housing Act in relation to gender identity protections. In April 2026, a Notice of Proposed Rulemaking was published, proposing to erase any and all references to the terms “gender” or “gender identity” from HUD rules and/or policies. This Proposed Rule has not yet been finalized. 

Despite the change in legal interpretation by HUD, many states’ fair housing laws explicitly include gender identity as a protected class, and various courts across the country also continue to enforce protections on this basis. Therefore, protections on the basis of an individual’s gender identity have been weakened at the federal level, but have not been stripped entirely.