Indigent, African American, unhoused, and living with AIDS, Mr. S knew what it meant to be marginalized. There was, however, a pathway to a better life: Mr. S qualified for a full housing subsidy from New York City’s HIV/AIDS Services Administration (HASA). The subsidy would pay full market rent directly to the landlord for an apartment anywhere in the city within the rent limits. An apartment would bring safety and stability. It would allow Mr. S to fully adhere to his dietary and medication regimens, the very reason that those in the HIV community proclaim that “housing is health care.” And it would allow Mr. S to realize his dream of returning to school, securing an advanced degree, and forging a career.
There was only one problem: Landlords in New York routinely discriminate against individuals utilizing housing vouchers or subsidies (vouchers) despite their ability to pay full market rent, a phenomenon known as source of income discrimination. One of New York’s largest real estate agencies refused any and all services for Mr. S. Another operated a two-tier system in which voucher holders were shown only the least desirable listings. When Mr. S inquired why they were not showing him the lovely apartments advertised in their store window—all within the range of his voucher—they explained their rationale: “Some apartments are for regular people, and some are for program people.” See Short v. Manhattan Apts. Inc., 916 F. Supp. 2d 375 (S.D.N.Y. 2012).
Mr. S’s story is sadly typical: Discrimination against voucher holders in the United States is rampant, as countless studies have demonstrated. And although a growing number of states and municipalities have adopted source of income protections, in the absence of federal protection, such discrimination remains perfectly legal in the majority of states. Those suffering this discrimination, moreover—those all too often viewed as less than “regular people”—are typically individuals already suffering under the weight of society’s prejudices. Fully 66 percent of federal Housing Choice Voucher (HCV) recipients are Black or Latine; 26 percent of households with an HCV have at least one family member living with a disability; and 77 percent of HCV households are female headed. In St. Louis, Missouri, for example, 94 percent of HCV recipients identify as Black or African American: “A refusal to accept [HCVs] means African-Americans are disproportionately turned away from these housing providers.” Metro. St. Louis Equal Hous. and Opportunity Council, Locked Out/Locked In: Section 8 Discrimination in St. Louis City (2019).
The federal Fair Housing Act (FHA) was adopted in 1968, extending protection against discrimination in housing based on race, color, religion, and national origin. (This list was later extended to include disability, sex, and familial status.) Absent from this list was protection against discrimination based on lawful source of income, a tragic omission, particularly in light of the history of affordable housing in this country: It was shortly after the passage of the FHA that governments in this country began to switch from project-based housing to voucher-based housing. President Nixon declared a moratorium on the construction of public housing in 1973, and a year later, the HCV program was established with the passage of the Housing and Community Development Act of 1974. The shift was intended to combat the segregation—the “warehousing”—of indigent and low-income recipients of housing assistance, allowing recipients to secure housing anywhere within the limit of their voucher while fostering diversity and economic and educational opportunity.
In the absence of federal protection for voucher holders, however, source of income discrimination has frequently served as a proxy for race, disability, and gender discrimination. Landlords and real estate agents unwilling to rent to African Americans, Latines, the disabled, and female-headed households can, without threat of legal action, simply base their rejection on an aversion to vouchers and the alleged drawbacks of voucher programs. See Zachary Wakefield, Fulfilling the Promise of the Housing Choice Program: Blind Review as an Enforcement Method for Source-of-Income Antidiscrimination Laws, 12 Indiana J. of Law & Social Equality 266, 270–272 (2024) (debunking these arguments and observing: “Landlord participation in the HCV program may actually have a number of economic advantages rather than drawbacks.”).
It is sadly not surprising, then, in the many states without protections, to see ads that overtly proclaim, “No Section 8,” “No programs,” and “Working applicants only.”
With the benefit of city law protections, Mr. S ultimately prevailed in the first-ever trial for source of income discrimination in New York. After he secured his own apartment, he returned to school, earned a master’s degree in mental health counseling, and went on to serve as a counselor for other marginalized individuals before he passed away.
There are countless others like Mr. S in this country, trapped in substandard housing or homelessness or wallowing in low-opportunity neighborhoods despite the ability to pay full market rent for a better home and a better life. They await the day when our country will finally correct its tragic mistake, over a half-century ago, of omitting those with vouchers from federal protection. Amending the FHA to add a lawful source of income, together with measures to fund vigorous testing and enforcement, can finally help us realize the full promise of voucher programs, widely hailed on both sides of the aisle as among the government’s most effective anti-poverty measures.
