The U.S. Department of Housing and Urban Development’s rollback of protections for housing discrimination related to sexual orientation, gender identity, and English language proficiency will likely impact Hawaiʻi residents’ options for reporting housing discrimination.
When a person is facing housing discrimination, there are two main administrative avenues they can go through: the Hawaiʻi Civil Rights Commission or the U.S. Department of Housing and Urban Development, commonly referred to as HUD.
If there is legal coverage at both the federal and state levels, the case could be filed by both entities.
How has HUD narrowed its enforcement of the Fair Housing Act?
HUD uses the Fair Housing Act to investigate housing discrimination cases. The federal law prohibits discrimination in the rental, sale, or financing of housing based on race, color, sex, religion, national origin, familial status, and disability. States, such as Hawaiʻi, can offer additional protections.
However, in September, HUD published changes in guidance on how it administers the Fair Housing Act, rescinding previous orders, such as one from 2007 that said English proficiency falls under the protection of national origin. It also rescinded an order from 2021 that said the law’s sex discrimination provisions covered sexual orientation and gender identity.
The changes have resulted in those who are facing discrimination due to their sexual orientation, gender identity, and English language proficiency now having limited options at the federal level.
Hawaiʻi Civil Rights Commission Executive Director Marcus Kawatachi explained that previously, those cases would be dual-filed with HUD.
“Normally, there was no question. If it's the same protected basis, if it's within the same time period, then yes, we would dual-file it with HUD,” he said.
But now, it’s unclear.
Further complicating matters is President Donald Trump’s executive order attacking disparate impact claims. It’s a long-accepted legal theory where a policy may seem neutral, but in practice, it unintentionally discriminates against a protected group.
“Disparate impact cases are no longer being taken by HUD,” Kawatachi said. “That's a pretty significant thing.”
In a written statement, a HUD spokesperson wrote that the department is “restoring the Fair Housing Act to its core statutory mission and will continue to uphold the law.”
What do the changes mean for housing discrimination cases?
Legal Aid Society of Hawaiʻi Honolulu Consumer and Housing Managing Attorney Alicia Pitts works with clients through both the HUD and the Hawaiʻi Civil Rights Commission housing discrimination process.
“Whether or not the limited English proficiency or sexual orientation and gender identity parts of it are going to be not prioritized due to HUD's priorities, sex and national origin still are protected classes,” she said.
“It’s often that when someone is experiencing housing discrimination, it is not based on one particular thing.”
For example, Pitts is working with a same-sex couple who filed a housing discrimination claim. Although the couple is reconsidering the sexual orientation aspect of the complaint, there was other evidence in the case that indicated direct sex discrimination against them for being female.
“It hasn't stopped everything,” she said. “Typically, we will look at all protected classes and try to see if there's anything else that we can tie it to. Because oftentimes there is at least a secondary basis on which we could kind of premise that discrimination on.”
The state laws that govern the Hawaiʻi Civil Rights Commission are more liberal than the federal Fair Housing Act. And it covers those cases that HUD may now exclude. However, Kawatachi expects more people will only have the Hawaiʻi Civil Rights Commission to turn to in some cases.
“Logically, there were two places that a person could go to, to investigate their claims. If one of them is reduced or eliminated, then yes. I mean, it's going to have an impact on the other,” he said. “I couldn't tell you how much of an impact, but I think it may be fairly significant.”
And the Hawaiʻi Civil Rights Commission’s 23 staffers are currently investigating over 400 cases — a quarter of which are housing discrimination. Of those 103 housing cases, three involve sexual orientation, two involve gender identity, and one involves English proficiency. Disparate impact is difficult to measure on open cases, as it’s usually discovered throughout the investigation process.
Another unknown is how staff layoffs at HUD will impact cases. Pitts has two active cases with HUD that she thought were close to being resolved. She hasn’t heard from the federal department since before the government shutdown in October.
“Not only is there a kind of narrowing of the scope of some of the protections, but they're also downsizing,” she said.
A report in Bloomberg estimated that 23% of HUD’s staff have left due to both staff cuts and early resignations. A HUD spokesperson wrote to HPR that the department does not comment on personnel actions.
Despite the changes and limitations, Pitts urged people to continue to come forward.
“I do understand that it can be an incredibly frustrating and long-term process,” she said. “But I do hope that folks still feel encouraged and emboldened to report these things, because without it, realistically, it's only more likely that there will be further pullbacks of protections for the Fair Housing Act.”
Federal funding in jeopardy for the Hawaiʻi Civil Rights Commission
Another impact of HUD no longer accepting these types of cases is that the Hawaiʻi Civil Rights Commission has a work-sharing agreement with the agency. For every case it closes together, the state commission gets federal funding. In fiscal year 2024, HUD awarded funding for a total of 13 cases of discrimination related to sexual orientation, gender identity, and disparate impact.
In total, Kawatachi estimates that federal funding accounts for roughly 20% of its budget.
“If we have funds cut, we have to look at either not filling positions or maybe doing something to get alternate sources of funding, which is always a challenge,” he said.
“I do think that any sort of reduction in staffing has an impact. It'll take longer for cases to be processed. Depending on what positions we're talking about, they may be the only position in the office that does a certain type of thing. So there's tough decisions to be made if there are funding cuts.”
Kawatachi wants the state Legislature to extend the statute of limitations for when a person can file a claim from six months to one year to match the federal standards. The commission wants to ensure that people do not fall through the cracks.
“It really would break my heart to see people come to us and that be the scenario where they did everything right. They did the research, they went to the federal agency, and then, for whatever reason, they're not able to be assisted. And at that point, we have to tell them, I'm sorry, the law says we can't assist you either,” he said.
“We provide a free service. We provide information. So that's one thing that I don't want to be affected by any impact on the federal side is I still want our public to be able to come to us and receive the type of service and timely service that the people of the state deserve.”
In the meantime, Kawatachi encourages people to continue to report discrimination to the commission, and that they will continue to adapt to serve the public.
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