Access to fair housing is—and has always been—a civil rights issue. Yet in the midst of a global health pandemic, economic crisis and impending wave of mass evictions, the Trump administration is doing everything in its power to limit people’s ability to access and keep their homes.
Just last week, in the administration’s most recent attack on housing rights, the Department of Housing and Urban Development (HUD) rolled back critical protections in the Fair Housing Act’s disparate impact rule—a standard that is the very foundation for equal opportunity to safe and stable housing. The rule allows potential victims of housing discrimination to challenge unjustified policies, practices or covert forms of discrimination that disproportionately harm them.
Advocates have used the disparate impact rule to challenge discriminatory zoning regulations, predatory mortgage lending practices that charge excessive rates to people of color and people with disabilities, overly restrictive occupancy requirements that shut out families with children, and policies that threaten housing for survivors of gender-based violence and women of color. The Fair Housing Act has been a tool that has helped tremendously to dismantle many of these systemic barriers to fair housing.
The Supreme Court has recognized and affirmed the importance of disparate impact, especially for addressing harms experienced by communities of color. For example, the Fair Housing Act has been used to invalidate housing restrictions imposed by housing providers, financial institutions, and other corporations that function to unfairly and arbitrarily exclude minorities from housing opportunities in certain neighborhoods—further perpetuating residential segregation.
But now, the Trump administration’s new rule will weaken these existing housing protections by imposing a significantly higher burden on victims of housing discrimination to prove their discrimination claims—making it nearly impossible for them to prevail and receive access to housing—and by giving broad defenses to banks, housing providers, and others responsible for discriminatory practices.
The new standard departs sharply from, and is much more difficult to meet, than the standard that applies in the employment context. The ACLU submitted a public comment opposing the new discriminatory rule change when it was first proposed last year.
HUD’s rule threatens the safety and security of domestic violence survivors, the vast majority of whom are women. Domestic violence is a primary cause of homelessness for women and families, as survivors regularly report lacking housing options as a major barrier to escaping abuse.
Even if they escape the abuse, survivors face discrimination in housing as a result and may be blocked from access to certain housing opportunities simply because of their status as survivors of domestic violence. The new rule will further remove protections that could safeguard survivors from this discrimination.
Further Weakening of HUD Oversight
This is not the first of the administration’s attempts to dismantle fundamental housing protections for the most vulnerable and marginalized communities. A few months ago, HUD issued a new Affirmatively Furthering Fair Housing (AFFH) rule. Under the Fair Housing Act, HUD is mandated to actively combat and undo decades of policies that have contributed to residential segregation and to proactively address policies and practices that result in housing discrimination.
However, the new AFFH rule would significantly weaken HUD’s oversight of local and state governments receiving federal funding on how they are meeting their fair housing obligation, making communities of color, people with disabilities, survivors of domestic violence, families with children, and other marginalized communities even more vulnerable to housing insecurity and abuse. The ACLU also filed a public comment in opposition to the rule.
And unfortunately, that’s not the last of the administration’s recent Fair Housing Act attacks. In July, HUD proposed a new rule allowing government-funded homeless shelters to turn away trans and gender non-conforming people based on a number of factors, including the shelter provider’s religious views. If implemented, this would gut protections for transgender people meant to ensure the safety of anyone in need of shelter from HUD-funded programs.
This string of attacks on fair housing, including the recent disparate impact rule, is the latest in a series of Trump administration assaults on civil rights. Equal access to safe and stable housing is a civil right and key to the well-being of individuals and families across the country.
The ACLU and our partners will continue to fight through litigation and advocacy to challenge these discriminatory new HUD rules and restore the critical housing protections that will ensure all people—including the most vulnerable and marginalized communities—have equal access to housing.
