Matt Rolf Attorney LLC

A Legislative Roadmap to Protecting LGBT Tenants from Discrimination in Ohio

by Matt Rolf and Laurel Parkins-Turner - September 2023

-A recent amendment to the Landlord Tenant Act calls into question the ability of municipalities to protect LGBT tenants through anti-discrimination ordinances. What can be done?

Ohio remains in a shrinking cohort of jurisdictions without state-wide prohibitions against housing discrimination toward LGBT individuals and families. Efforts have been made to amend the Civil Rights Commission Chapter of the Revised Code, but those efforts have not been successful. To the contrary, recent proposals to ban medical treatment and scholastic athletic participation for minor transgender individuals were passed by the Ohio House. Those transgender bans have a chance of being made law if also passed by the Ohio Senate, demonstrating a legislative hostility to LGBT civil rights.

To get around a recalcitrant General Assembly pre-2023, activists promoted the implementation of local anti-discrimination ordinances in cities across the state. The goal of these ordinances is to protect as many LGBT individuals as possible, and to lay the groundwork for further statewide reform.

However, these local ordinances usually do not integrate well into the eviction process. An LGBT tenant facing a discriminatory eviction will therefore find themselves without an effective remedy to prevent their eviction, even in a jurisdiction with nominal protection. A recent change to the Ohio Landlord Tenant Act suggests local anti-discrimination ordinances do not apply to the landlord tenant relationship, and that amendments to Ohio’s Fair Housing Act to protect LGBT people may also not apply to an eviction.

The landlord-tenant relationship, and the eviction process in particular, is therefore a good place to consider how improvements can be made to legislative reform efforts intending to provide protections to LGBT individuals in Ohio. For reasons of brevity, this article focuses on Ohio statutes and remedies as opposed to Federal law.

Ohio Fair Housing Act and Discrimination in Evictions

The Ohio Fair Housing Act is contained within Ohio’s Civil Rights Commission statute in R.C. Chapter 4112. The act creates a civil action for housing discrimination in R.C. 4112.055. The action may be filed in the court of common pleas. The court has discretion to permit the action to be commenced without payment of costs, and may appoint an attorney for the complaining party.

Courts have allowed an action authorized under the statute to be brought as a counterclaim to an eviction action. Since most evictions are filed in municipal court, bringing the discrimination claim will often require a change of venue. Lable & Co. v. Flowers, 104 Ohio App. 3d 227, 661 N.E.2d 782 (1995), and K & D Mgt., L.L.C. v. Masten, 2013-Ohio-2905.

Ohio Eviction and Landlord-Tenant Law, 6th Ed., by Peter Iskin states that certain types of discrimination may be raised as a defense in an eviction action. However, these defenses appear to be limited to federal statutes such as the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973,Title II of the Americans with Disabilities Act, and the Civil Rights Act of 1866. The devil is very much in the details; the federal Fair Housing Act in particular is limited to buildings with five or more units.

Ohio case law in the eviction context is relatively thin on the ground for all these statutes, particularly for tenants in smaller single-family or duplex buildings. For more traditionally protected classes, the landlord-tenant practitioner should take care that their defenses or counterclaims can actually be brought so as not to face a counterclaim for frivolous practice.

Proposed State Reform and Local Ordinances

The proposed Ohio Fairness Act, currently introduced in the General Assembly as SB 119, would amend R.C. 4112.01 to include: “For purposes of the Revised Code, any provision, respecting sex discrimination includes discrimination because of a person's sexual orientation or gender identity or expression.”

Under the current authority of R.C. Chapter 4112, and as an exercise of Home Rule authority, local municipalities across Ohio have passed ordinances banning discriminatory housing practices for classes beyond the state statute. Thirty-five localities, including Cuyahoga County, have extended housing discrimination protections to LGBT individuals.

These ordinances can vary wildly in content, but typically have a process for receiving complaints of discrimination, investigating those complaints, conducting a hearing, adjudicating the matter, and providing relief. Cuyahoga County’s ordinance establishes a commission on human rights to hear complaints and enter relief.

The limited use of these ordinances and commissions to the LGBT tenant facing eviction should be obvious. A tenant would have to know about the existence of a board, commission, or administrator that handles these issues and bring a separate complaint; the municipality would have to have the resources to investigate and hear the complaint; these local processes do not interface with the eviction process; and a tenant will almost certainly need to continue pursuing their remedy through the local ordinance after the conclusion of the eviction process.

State Preemption of Local Ordinances and Possibly the Ohio Fair Housing Act

Another drawback is the limited ability of local ordinances to create rights related to the landlord tenant relationship or the eviction process. As has become common when local municipalities provide relief for residents through Home Rule, the General Assembly has sought to pre-empt local power. Landlord-Tenant law is no longer an exception to this trend.

In 2022, the General Assembly amended the Ohio Landlord Tenant Act to specifically pre-empt local ordinances. The Landlord Tenant Act now states that R.C. Chapter 5321 is “a statewide and comprehensive legislative enactment regulating all aspects of the landlord-tenant relationship with respect to residential premises,” and “… no political subdivision may enact, adopt, renew, maintain, enforce, or continue in existence any charter provision, ordinance, resolution, rule, or other measure that is in conflict with this chapter, or that regulates the rights and obligations of parties to a rental agreement that are regulated by this chapter.” R.C. 5321.20 and R.C. 5321.19. The legislature reiterates “…it is the intent of the general assembly to preempt political subdivisions from regulating the rights and obligations of parties to a rental agreement that are regulated by this chapter.”

Retired Judge Patrick Carrol of the Lakewood Municipal Court pointed out in the October 2022 edition of the CMBA Bar Journal that such language likely pre-empts efforts by cities to enact “pay-to-stay” legislation. See Page 18-19, Oct. 2022 CMBA Bar Journal, and see also Shaker House LLC v. Daniel, 2022-Ohio-2778, 193 N.E.3d 1159. It is also possible local ordinances that attempt to provide discrimination protections for LGBT individuals will be found by courts to not apply to the landlord-tenant context.

If such language does not also pre-empt the Ohio Fair Housing Act under R.C. Chapter 4112, then it certainly places it in conflict with the Landlord Tenant Act. If the Landlord Tenant Act is the “comprehensive” legislative enactment overseeing all aspects of the landlord-tenant relationship, then where does the Ohio Fair Housing Act stand with regard to housing protections for tenants? References to R.C. Chapter 1923, which deals with issues of forcible entry and detainer, are incorporated in R.C. Chapter 5321. References to the Civil Rights Commission Act and Ohio’s Fair Housing Act do not appear; nor does Chapter 4112 appear within exemptions listed under R.C. 5321.19 or R.C. 5321.20.

U.S. Supreme Court

To compound the problems facing Ohio’s civil rights statutes, the U.S. Supreme Court’s recent opinion in 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023) is a warning that the court is prepared to overturn civil rights protections for LGBT people going forward. The Court nakedly bases its decision in the anti-LGBT Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). In that case, LGBT individuals were barred from marching in a Boston St. Patrick’s Day parade where they identified themselves under an LGBT supportive organization’s name (“GLIB”). While the decision in 303 Creative is cast as narrow, practitioners should harbor no illusions going forward about the certainty of our civil rights statutes that seek to protect LGBT people.

Potential Solutions

Accounting for the Supreme Court’s hostility, reform must happen in the Landlord Tenant Act. The Act should reference or incorporate strong protections for potential targets of discrimination, including LGBT people. The proposed Ohio Fairness Act is not sufficient to provide a remedy for tenants, even if it were enacted. Local ordinances applying civil rights protections to tenants are no longer on solid ground. Ohio civil rights laws must be shored up, but activism must also be directed at the General Assembly to stop the regression of the Landlord Tenant Act.

Policy makers and activists must adapt to the new reality of a General Assembly that leveraged the Landlord Tenant Act against local reform, and a Supreme Court that is undercutting civil rights laws for LGBT citizens. Both targeting the Landlord Tenant Act for reform and integrating it with the Ohio Fair Housing Act are essential steps in crafting usable remedies for tenants facing discrimination.