Gutting Racial Housing Discrimination Accountability at the State Level

(July 28, 2020, Washington, D.C.) – Late last week, the Department of Housing & Urban Development (HUD) announced two rule changes to undo previous anti-discrimination rules for housing and homeless shelters. The new rules contravene HUD’s mission to create suitable living environments for all Americans and would allow discrimination—backed by HUD funding—to proceed.

After months of the Trump Administration undermining the 2015 Affirmatively Furthering Fair Housing (AFFH) regulation, HUD circumvented the usual notice and comment rulemaking process; on July 24, they issued a rule rescinding the 2015 AFFH rule altogether. The 2015 rule was the only guidance since the Fair Housing Act of 1968 on how states should address discriminatory housing practices It also required cities to analyze and report on racial bias in local housing and to create plans to reverse the decades of racial segregation generated by federal, state, and local discriminatory housing policies.

HUD’s replacement for the 2015 AFFH regulation, the Preserving Community and Neighborhood Choice rule, states “certification will be deemed acceptable if the grantee has taken some active step to promote fair housing,” gutting HUD’s ability to hold communities accountable.

“Given that many cities today are more segregated than they were in 1968—precisely because HUD never took steps to enforce the affirmatively furthering fair housing obligation earlier—by gutting this rule today, the Trump Administration ensures segregation will continue,” said Eric Tars, Legal Director at the National Law Center on Homelessness & Poverty. “The Administration has left no question as to its purpose, stating it wants to stop the rule from ‘bringing who knows who into your suburbs, so your communities will be unsafe’, a dog-whistle to white-supremacist-stoked fears of integration.”

Removing the Humanity from Housing Services and Shelters

On the same day it undid regulations countering racial discrimination, HUD also took steps to remove protections for transgender people experiencing homelessness or housing instability. The 2016 Equal Access Rule requires recipients of HUD Community Planning and Development programs to grant access to shelter and housing in accordance with a person’s gender identity. HUD’s proposed change to this rule allows service providers to base access to services on the provider’s perception of a person’s gender, using their personal discretion and even their religious beliefs to determine an individual’s gender and shelter them accordingly.

“HUD’s proposed rule is an affront to the humanity, dignity and fundamental rights of transgender people experiencing homelessness and to basic principles of equity and fairness. By allowing federally funded shelters to turn them away, the proposed rule pushes this vulnerable population onto the street, exposing them to violence from private actors and criminalization of their basic life-sustaining activities, such as sleeping and sheltering themselves, by law enforcement,” said Maria Foscarinis Executive Director of the National Law Center on Homelessness & Poverty. “This proposal from the Trump Administration would put transgender people directly in harm’s way, flying in the face of HUD’s purpose and further setting back our work to end homelessness. Housing is a human right, and that must mean for all people, regardless of gender identity.”

The Law Center is considering legal responses to both rules, and the proposed change to the Equal Access Rule is open for public comment until September 22, 2020. Please learn more and submit your own comment to HUD denouncing this cruelty.

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The National Law Center on Homelessness & Poverty (the Law Center) is the only national organization dedicated solely to using the power of the law to prevent and end homelessness. With the support of a large network of pro bono lawyers, we address the immediate and long-term needs of people who are homeless or at risk through outreach and training, advocacy, impact litigation, and public education.

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The National Law Center on Homelessness & Poverty (the Law Center) is the only national organization dedicated solely to using the power of the law to prevent and end homelessness. With the support of a large network of pro bono lawyers, we address the immediate and long-term needs of people who are homeless or at risk through outreach and training, advocacy, impact litigation, and public education.