Sex Offenders Are Not a Protected Class, Are They?

Written on November 19, 2014 by , updated on October 30, 2017

Sex OffenderI’ve met many landlords who are convinced that an applicant cannot be rejected based on a conviction as a sex offender.

When the subject comes up in conversation, they typically claim that their lawyer/brother/buddy said, “It’s against the fair housing laws.”

However, they’re never able to cite the statute or law that supports their claim.

This article is intended to explore the facts, examining the housing laws pertaining to sex offenders at a federal, state and local level.

With that said, this is not intended to be exhaustive or a substitute for qualified legal advice.

Federal Government

The Fair Housing Act

The Civil Rights Act (Fair Housing Act) of 1968, Sec. 804. [42 U.S.C. 3604], and all subsequent amendments, do not identify sex offenders as a protected class.

At a federal level, the only protected classes are:

  • Race
  • Color
  • Religion
  • Sex
  • Familial Status, including having children or being pregnant
  • National Origin, or
  • Mental or Physical Disability

Housing and Urban Development (HUD)

In the Electronic Code of Federal Regulations (e-CFR), specifically 24 CFR 5.856, it mandates that sex offenders are prohibited from living in “federally assisted housing” (as defined in 24 CFR 5.100).

Though federally assisted housing is only a small percentage of the total housing in the United States, it sends a strong message when the federal government takes such a strong stance.

After all, convicted sex offenders pay taxes just like everyone else.

Sex Offender Registration and Notification Act (SORNA)

In 2006, the Adam Walsh Child Protection and Safety Act was signed into law by President George W. Bush.

The significance of the law is that it organizes sex offenders into three tiers and mandates specific requirements for each:

  • Tier 1 offenders: Must update their whereabouts every year with 15 years of registration
  • Tier 2 offenders: Must update their whereabouts every six months with 25 years of registration
  • Tier 3 offenders: Must update their whereabouts every three months with lifetime registration requirements.

The Walsh Act also establishes the Sex Offender Registration and Notification Act (42 U.S.C.16911), abbreviated as SORNA, which requires U.S. jurisdictions (states and territories) to update their sex offender registration laws to conform with federal guidelines. States in noncompliance face a 10 percent penalty in their Bureau of Justice Assistance grant money.

State Governments

All 50 states and the District of Columbia require convicted sex offenders to register with their state, even if they have completed their sentence and have been rehabilitated.

Many states have laws that even restrict residency within a certain number of feet of a school or day care; however, these laws vary from state to state.

California Leads the Way

California became the first state to have a sex offender registration program in 1947. In 2006, the California Attorney General stated in an official report that sex offenders are not a protected class.

Various state supreme court hearings have occurred over the years, including notable cases in Hawaii, Alaska, Missouri, and Florida, but most discuss the topic of retroactive application of the law, not whether it is currently applicable.

Local Governments

Each county must abide by federal and state legislation, but are allowed to add onto, or attempt to fight the top-down legislation. However few (if any) have succeeded in establishing sex offenders as a protected class.

Seattle Attempted to Fight

In 2010-2011, the Seattle Office for Civil Rights launched a campaign to make it easier for registered sex offenders, among others with arrest and conviction records, to find housing and employment.

After public backlash, the Seattle Office for Civil Rights scaled down the effort to exclude any specific mention of sex offenders from the campaign.

In a Q&A pamphlet, entitled “Proposed protections to end discrimination in housing and employment based on arrest/conviction record” the following question is answered:

Seattle has a long list of protected classes, and yet sex offenders are not included.

Protected Classes in Seattle:

  • Age
  • Ancestry
  • Breastfeeding in a public place
  • Color
  • Creed
  • Disability
  • Gender identity
  • Marital status
  • National Origin
  • Parental status
  • Political ideology
  • Race
  • Religion
  • Sex
  • Sexual orientation
  • Use of a Section 8 certificate
  • Use of a service animal
  • Military status or Veteran

In fact, Seattle’s Official Fair Housing Handbook, page 21, even clarifies that a history of sex offense does not qualify as a disability:

This citing does not exclude sex offenders from having other legitimate and protected disabilities, it simply validates that the status as a sex offender is not a disability in itself.

Additional Resources

Conclusion

Based on this research, I’ve come to the conclusion that while convicted sex offenders are indeed a specific class, they are not a protected class and do not have special rights and leniencies when being considered for housing.

Though there are notable tiers of offenses, confirming that some crimes are worse than others, the choice to commit a crime is exactly that, a choice. And with all choices, there are consequences.

As of yet, I have not been able to find a federal, state, or local law that identifies sex offenders as a protected class for purposes of housing discrimination under the Fair Employment and Housing Act.

Let’s Figure this Out Together!

I’m not a lawyer nor can I give legal advice. I am simply a landlord who wants to know what the housing laws say about sex offenders.

Though I’ve made a notable attempt at researching these statutes at multiple levels of government, I realize this research is not exhaustive.

If you know of a statute or law that supports sex offenders as a protected class, please let me know. I’ll add it to this article, and we’ll examine the evidence together.

photo credit: angus mcdiarmid via cc
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65 CommentsLeave a Comment

  • james

    Well Said Vahall you hit the nail right on the head

  • Alain Garceau

    Hi Lucas,
    In Canada when you paid for your crime the story is over and should be the same here in U.S.
    Canadian believe in rehabilitation and it works. Unfortunately there is no guarantee an offender of any crime will do it again after prison time or rehab but let give the player a second chance otherwise it can ruin many people’s chances to become good law abiding citizens by discriminating them over their past mistakes . How many times an offender must pay for his crime ? Why a Landlord has the ability to see their past sex offenses on a background check when it should be sealed when the case is closed ?

  • George

    I’m moving to another state, and everyone asks if I have a felony conviction including realtors. I
    thought it was only for persons required to register address for certain offenses or their equal in
    the jurisdiction moving to. Do I lie, take the chance a backround check will disclose this, then be
    evicted for lying or be honest and get denied solely for 1 drug sale record now OVER 37 years old?
    Like employers, landlords will give me any excuse except the truth so they won’t get sued.

    After moving I can then apply for my record to be expunged or sealed. Now not using social media
    makes me suspicious/hiding something? This kind of BS has to stop, not offending again is reason
    enough after all this time, and I have a right to privacy.

  • Chris

    What do we do with the Kids who got put on the list? Some states make any body on the list Lifetime, So if you were 10yo and got put on the list then you are to never have a home of your own? It don’t make any sense if you were under 18 or got tried in Family Court then you should not have to worry about being on the list or Getting housing

  • Sunny

    California Penal Code 290.46(l)(2)(G) prohibits landlords and others from using information from the Megan’s Law website (registry) to discriminate against registrants.

    California Civil Code 1786.18 forbids criminal background checks going back further than 7 years. For any registrant with a case older than 7 years, there are very few or no legal methods a landlord can use to discriminate against a registrant.

    Also notable:

    AB 1008 (“Ban the Box”) became effective in 2018 and prohibits employers from asking applicants about criminal history (Fair Employment and Housing Act).

    In 2021 California’s 3-tiered registry (Senate Bill 384) will permanently remove tens of thousands of people from the registry altogether.

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