Real Estate's Union With Equality

Long before federal recognition of same-sex marriage, REALTORS® blazed a trail for LGBT fairness in the Code of Ethics.

September 16, 2015

The U.S. Supreme Court's ruling on same-sex marriage in June has given fresh momentum to the continuing legal battle for full equal rights for gays and lesbians. While same-sex couples can now wed nationwide, discrimination in housing and other areas is still being addressed in many parts of the country.

Today, only 22 states provide legal protections against discrimination based on sexual orientation in employment, housing, and public accommodations. In many other states, municipalities have passed their own antidiscrimination measures. But against that patchwork of protections, no group has been more out front about eliminating barriers to equal housing opportunity nationwide than the National Association of REALTORS®.

The REALTORS® Code of Ethics was amended in 2010 to prohibit discrimination against lesbians and gays with regard to professional services. Gender identity was added as a protected class in 2013. The updates to the Code sent a clear message to NAR members about the importance of equality for all consumers.

Side note: The REALTOR® organization is even connected to the marriage ruling. The lead plaintiff in the Supreme Court case, Jim Obergefell, is a REALTOR® and agent with Coldwell Banker West Shell in Cincinnati. The historic case involved Obergefell's lawsuit against the state of Ohio, where same-sex marriage was previously banned. He sought to be legally recognized as the widower of his late husband, John Arthur. (The couple was legally married in Maryland in 2013, three months before Arthur died from ALS.)

Article 10 of the Code states, in part, that REALTORS® "shall not be parties to any plan or agreement" that involves discrimination in this manner. So even though state law may allow a seller to discriminate, an agent’s participation runs afoul of his or her ethical obligations, says Peg Ritenour, general counsel for the Ohio Association of REALTORS®. With the expansion of LGBT rights, this type of scenario "is going to be a bigger dilemma" for the real estate industry, she says.

Marriage equality has heightened the need for practitioners to be sensitive to antidiscrimination laws, she adds. In Ohio, local fair housing laws in many municipalities cover LGBT residents despite the lack of protections at the state and federal level. "A practitioner could potentially have sellers who say they don’t want to sell or rent to a gay couple," Ritenour says. "First, I'd counsel the agent to check whether that’s legal under local ordinance." But practitioners also have to assess whether they’re putting themselves at risk of a Code violation. she adds.

When they work with married gay couples, practitioners should be prepared to discuss the legal benefits available to them through home ownership. For example, they have the option to hold title through "tenancy by the entirety," rather than "joint tenancy," which gives the home greater protection from creditors. Also, spouses can transfer property to or inherit property from one another tax-free.

In the real estate community, many are proud of NAR's leadership in setting inclusive business practices. "As the country awaited the Supreme Court decision, I thought how truly the REALTOR® association has embraced the best of America's values," says NAR’s 2014 President Steve Brown. "Like America, we have grown to understand that discrimination is neither right nor good business.”"

"Being the largest trade organization, and as powerful as the REALTOR® name is, we’ve absolutely sent the message that we want to lead the way toward equality," says Maura Neill, ABR, CRS, a sales associate at RE/MAX Around Atlanta Realty. "Our job is to make people's dreams come true, no matter who they are."

On the heels of the marriage decision the federal Equality Act, a comprehensive nondiscrimination bill, was introduced in Congress. It's unlikely to gain traction with lawmakers soon, but NAR is monitoring how the legislation unfolds.

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