Are the unhoused a “people”? If the answer is yes, then don’t they deserve equal protection under the law? These questions were broached last week by the American Civil Liberties Union of Southern California in a lengthy report titled “Outside the Law: The Legal War Against Unhoused People.” Rather than think of homelessness as a condition, the authors argue, lawmakers should protect those who live on the street in the same way that the Constitution and California law protect groups based on race, gender or religion. The report calls for “state legislation prohibiting discrimination based on housing status.”
It’s a quietly big idea that tries to do three things at once.
First: It offers a legal framework to protect the homeless against discrimination. If, say, a city enacted a policy that made it illegal for homeless people to use public bathrooms, advocates for the homeless could then sue. As it is now, you wouldn’t be able to argue that such a move was illegal because it discriminates against the homeless. This is for the very simple reason that targeting them, often with bills that don’t mention them specifically, but clearly have been written for them, is legal.
Second: The authors believe that classifying the unhoused as a social group and talking about them as such in public at, say, City Council meetings and on national television will help negate some of the stigma attached to them. The hope is that it will force people to recognize the homeless as human beings who are part of the broader community.
Third: The idea that the homeless are a people may help garner support for the construction of more affordable and public housing.
California’s homelessness crisis can sometimes feel like a never-ending series of catastrophes, but Eve Garrow, one of the report’s authors, believes we have reached an inflection point when it comes to the treatment of unhoused people. “As the crisis — which is an affordable-housing crisis — gets worse and worse, visible houselessness is rising,” Garrow told me. “Local governments have become increasingly sophisticated in finding ways to discriminate against and persecute unhoused people.”
Most Californians agree something has to change. Poll after poll has shown that voters in the state see homelessness as a top priority. In response, Gov. Gavin Newsom recently signed a $22 billion legislative package that provides some support for mental health problems among this population, regulates shelters and creates oversight over how money for homelessness solutions gets distributed. Last November, a report issued by the California auditor found that mismanagement and “the lack of a comprehensive plan” effectively squandered $2.7 billion in bond resources that were supposed to go toward the building of affordable housing. The emphasis in the new legislation seems to be on making sure this waste doesn’t continue.
While there’s a lot of inefficiency and often a sense of hopelessness on the side of helping the unhoused, law enforcement and hostile local governments have taken decisive, coordinated action to clear out camps, jail individuals and pass legislation that effectively makes being homeless illegal within city limits. The A.C.L.U. report includes an eye-opening account of the city of Chico. It has a sizable homeless population that has only grown since wildfires displaced tens of thousands of people in the surrounding areas. In 2013, Chico lawmakers began passing a series of ordinances that made it illegal to sit or lie down on sidewalks between 7 a.m. and 11 p.m. or to store personal property in public spaces.
During this pandemic, as the homeless population continued to increase, new City Council members were voted in who ran on a more aggressive stance. They have made it illegal to camp in a city park and heightened the penalty from a citation to possible jail time. Local law enforcement also began routine sweeps to try to push the unhoused out of the city.
Other cities in California have used similar tactics. Even though most do not specifically mention the unhoused, the A.C.L.U. argues that they are still the target of harsh restrictions. “A law that seems neutral can have a disparate impact on a specific group,” Garrow said. “There are also ways to demonstrate that a law that appears to be neutral was actually created to target a specific group by going back and reviewing City Council meetings and the rhetoric lawmakers use to justify such ordinances. It’s really, really clear.”
One may be bothered by how poorly the homeless are being treated but still feel a bit uneasy about classifying them as a distinct social group. The designation seems to suggest that homelessness is permanent and out of the control of the individual. Is there some danger, or, at least, some irresponsibility in extending protections to people based on what some might call a temporary or even deserved condition? Will it lead to protections for any people who want to proclaim themselves a group?
“I don’t actually have any fears about that,” Garrow said. “Living without a house is not an immutable characteristic, but it is a stigmatizing label that targets them and changes their lives completely.”
I’m inclined to agree with Garrow, in part, because I don’t really see some slippery slope where every group that feels persecuted in any small way, like, say, conservative students at elite colleges, successfully lobbies the state legislature on behalf of its trampled rights. The unhoused seem like a clear social category, and the law should protect them from discrimination.
It’s also worth asking whether Californians actually have all that much control over their housing status. The affordable-housing crisis in the state, which, as the report points out, began with the defunding of subsidized and affordable housing when Reagan was president, does not leave much room for grit and human agency. Can every poor person in the state suddenly get a job that pays the $60,000 salary required to afford a one-bedroom apartment in Los Angeles?
The enormity of the housing crisis in California has harmed nearly everyone, whether they are middle-class professionals priced out of the city, working-class gig employees who live in apartments with five roommates or the growing unhoused population that has fallen out of the system completely.
I am not sure whether classifying the unhoused as a protected group will persuade people to start thinking about their neighbors with more compassion or sympathy, nor will it clear the way for the extensive construction of affordable housing in their cities. But I also don’t think the two issues — the way the unhoused are brutally treated and the lack of housing in the state for them — should be separated.
The punitive policies detailed in the report will not stop encampments from sprouting up in public parks, under highway overpasses or in abandoned parking lots across the state. To understand why there needs to be more affordable housing in a community, you have to first accept that the people who are living on the street deserve to be your neighbors and are not just problems to be criminalized, jailed or expelled away.
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Jay Caspian Kang (@jaycaspiankang), a writer for Opinion and The New York Times Magazine, is the author of “The Loneliest Americans.”
