HUD sent an Affirmatively Furthering Fair Housing (AFFH) Interim Final Rule as well as proposed revisions to the Equal Access Rule to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) on February 12. There is no summary or text for either. NLIHC will monitor the Federal Register for actual text and will alert advocates to actions they can take in response to what will probably be an attempt to gut AFFH again and to deny access to programs for individuals based on their gender identity.
Affirmatively Furthering Fair Housing (AFFH)
Title VIII of the “Civil Rights Act of 1968” (the “Fair Housing Act”) requires HUD to administer its programs in a way that affirmatively furthers fair housing. The Fair Housing Act not only makes it unlawful for jurisdictions and public housing agencies (PHAs) to discriminate; the law also requires jurisdictions to take actions that undo historic patterns of segregation and other types of discrimination as well as promote fair housing choice and foster inclusive communities. The protected classes of the Fair Housing Act are determined by race, color, national origin, sex, disability, familial status, and religion.
Regulations did not exist that effectively implemented the 1968 AFFH provisions until the Obama Administration issued the first-ever AFFH regulation in 2015. The first Trump Administration suspended implementation of the 2015 rule in 2018 and issued a proposed rule on January 14, 2020. Then on August 7, 2020, the first Trump Administration abruptly issued a final AFFH rule effectively gutting the AFFH obligation without public review or comment.
Under the Biden Administration, HUD published an Interim Final Rule (IFR) “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications” in the Federal Register on June 10 2021. The IFR rescinded the rule issued by the Trump Administration on August 7, 2020. The IFR, which went into effect on July 31, 2021, required “program participants” (local and state governments as well as public housing agencies, PHAs) to submit “certifications” (pledges) that they will affirmatively further fair housing (AFFH) in connection with their Consolidated Plans (ConPlans), Annual Action Plans to their ConPlans, and Annual PHA Plans. The IFR did not require a specific planning process such as the Assessment of Fair Housing (AFH) created by the 2015 AFFH Rule. Instead, it created a voluntary fair housing planning process; program participants could use the AFH, or the previous Analysis of Impediments (AI) to Fair Housing, or some other means to demonstrate compliance with the obligation to affirmatively further fair housing. A new proposed AFFH rule was published on February 9, 2023, but the Biden Administration failed to issue a final AFFH rule.
Because the second Trump Administration will be presenting an Interim AFFH Final Rule, it will not necessarily be open to public comment.
NLIHC’s Racial Equity and Fair Housing website has more about AFFH, and NLIHC’s 2024 Advocates’ Guide has an AFFH entry on page 8-13.
Equal Access Rule
As NLIHC reported last week (see Memo, 2/10), new HUD Secretary Scott Turner announced HUD will stop enforcing the 2016 Equal Access Rule, which requires housing, facilities, and services funded through HUD’s Office of Community Planning and Development (CPD) to ensure equal access to programs for individuals based on their gender identity without intrusive questioning or being asked to provide documentation.
Secretary Turner stated that the action “will ensure housing programs, shelters and other HUD-funded providers offer services to Americans based on their sex at birth.” In a press conference following Secretary Turner’s first address to HUD, Turner stated, “I am directing HUD staff to halt any pending or future enforcement actions related to HUD’s 2016 Equal Access Rule, which, in essence, tied housing programs, shelters and other facilities funded by HUD to far-left gender ideology.”
Because HUD is proposing a revision to the existing Equal Access rule, it will be subject to a 60-day public review and comment period, as required by the “Administrative Procedure Act” (APA). NLIHC will continue to work with LGBTQ+ advocates to ensure that everyone has access to safe, decent, affordable housing.
NLIHC’s Racial Equity and Fair Housing website has more about the Equal Access Rule and NLIHC’s 2024 Advocates’ Guide has an Equal Access entry on page 6-75.