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The title sort of says it all. I was using a roommate finding/room rental app when I noticed it had an option to filter for 'LGBT housing'. The Fair Housing Act forbids discriminating against sex, including sexuality. Thus I'm wondering how allowing preferential treatment to LBGT sexualities/genders wouldn't constitute discrimination?

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    Who would the advertised-for roommate pay rent to: the other roommate, or to a third party (the landlord, like when college students live in apartments and need roommates)?
    – RonJohn
    Apr 20, 2023 at 3:47
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    is it discriminating based on LGBT sexual identity or based on LGBT-accepting political beliefs?
    – user253751
    Apr 20, 2023 at 9:57
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    What is the purpose of 'LGBT housing' filter? Does it mean "LGBT people are welcome here" or "only LGBT people allowed"? It would help if you shared the app you are using. Apr 20, 2023 at 10:25
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    @MindwinRememberMonica The app is irrelevant. The critical point is the nuance of the filter. Providing the app itself allows answerers to look into the details to determine the exact nature of the filter. The ambiguity surrounding the details of the filter and how the app handles landlord/tenant relationships does harm the Q&A. Either the identity of the app can be revealed or the relevant details can be. Without more information, the best answer this question gets is a variation of "maybe".
    – David S
    Apr 20, 2023 at 14:44
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    @Obie2.0 That's not what I'm saying at all. I know nothing about this particular function. I'm just saying that giving us more tools so we have a better chance of choosing roommates who maybe won't try to harm us is not preferential treatment. cisgender, heterosexual white men don't have to worry about that kind of thing so naturally they don't need a filter, whether it is for LGBT people in specific or also allies.
    – cat40
    Apr 21, 2023 at 14:24

2 Answers 2

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The words of the prohibition in 24 CFR 100.60(a)are that

It shall be unlawful for a person to refuse to sell or rent a dwelling to a person who has made a bona fide offer, because of race, color, religion, sex, familial status, or national origin or to refuse to negotiate with a person for the sale or rental of a dwelling because of race, color, religion, sex, familial status, or national origin, or to discriminate against any person in the sale or rental of a dwelling because of handicap.

It would be discriminatory for the landlord to refuse to rent to a person because they are or are not of some sex. Based just on the plain language of the prohibition, the author of the app or operator of a website is not renting / refusing to rent. Nevertheless, Roommate.com was sued, and found not liable, though not on the grounds that they hadn't discriminated

Fair Housing Councils v. Rommate.com addressed an attempt to punish roommate.com on discriminatory grounds. The court states that "The pivotal question is whether the FHA applies to roommates". The court's reasoning is a clear application of the notion of "Congressional intent". As they say,

There’s no indication that Congress intended to interfere with personal relationships inside the home. Congress wanted to address the problem of landlords discriminating in the sale and rental of housing, which deprived protected classes of housing opportunities. But a business transaction between a tenant and landlord is quite different from an arrangement between two people sharing the same living space. We seriously doubt Congress meant the FHA to apply to the latter. Consider, for example, the FHA’s prohibition against sex discrimination. Could Congress, in the 1960s, really have meant that women must accept men as roommates? Telling women they may not lawfully exclude men from the list of acceptable roommates would be controversial today; it would have been scandalous in the 1960s

The court continued on other grounds, observing that

given that the FHA is a remedial statute that we construe broadly... we turn to constitutional concerns, which provide strong countervailing considerations

That is, even if you ignore congressional intent, there is a constitutional reason why FHA cannot apply to roommate choice.

SCOTUS in Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 stated that "the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights", and "Courts have extended the right of intimate association to marriage, child bearing, child rearing and cohabitation with relatives". Then in order to "determine whether a particular relationship is protected by the right to intimate association we look to 'size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship'". After extensive analysis centered around the point that "Government regulation of an individual’s ability to pick a roommate thus intrudes into the home, which 'is entitled to special protection as the center of the private lives of our people'", the court "adopt[s] the narrower construction that excludes roommate selection from the reach of the FHA".

TL;DR the FHA doesn't apply to roommates and it's legal to select one's roommates based on their race, color, religion, sex, sexuality, etc...

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    Let me check if I got this right: the FHA doesn't apply to roommates and it's legal to select one's roommates based on their race, color, religion, sex, sexuality, etc. Apr 20, 2023 at 8:58
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    The nature of the agreement between roommates is different than a rent because of cohabitation. Even the statute's wording seems to agree: Is a single room a dwelling? I believe finding a roommate is more like entering a business partnership than actual landlord-tenant relationship. @DmitryGrigoryev can a businessman be sued for rejecting a business partner, whichever the reason? They don't need to disclose the reason, to begin with. Apr 20, 2023 at 13:43
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    RonJohn's comment under the question is applicable, and most likely needs to be answered. e.g. "Who would the advertised-for roommate pay rent to: the other roommate, or to a third party (the landlord" - If the person looking for a roommate is subletting the bed, does that change things? If both roommates would be paying rent to the landlord, then the what if the person applying does not fit the roommate-to-be's wanted sex? The landlord can't refuse to rent based on that. This is (potentially) very complicated.
    – CGCampbell
    Apr 20, 2023 at 14:42
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    @DmitryGrigoryev and I wasn't challenging your comment. I blame the lack of nuance in hastily drafted electronic text. Apr 20, 2023 at 15:49
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    It's probably also worthwhile to note that FHA protections do not apply to owner-occupied housing with less than five units or private sales/rentals not including an agent. There was clearly a legislative intent to separate "big landlords" from individuals and "small landlords." If a small time owner-occupier landlord is legally able to discriminate on sex, then it would be silly for a roommate not to be able to discriminate on the basis of sex.
    – David
    Apr 21, 2023 at 0:50
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Whether this is lawful, has already been answered. Whether this is ethical (and by extension should be lawful) can be argued. Without knowing the intentions of the advertisers, your best approach would be to interpret this as a way to search for homes that are friendly towards queer folks. Similarly, tenants may be looking for homes friendly to their religion or race, neurodiversity, or hobbies. This filter lets advertisers be proactive and explicit about non-tangible aspects of the home.

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