Donald Trump’s Civil Rights Office for Housing Has Found the Real Problem: Pets

Originally published in The Intercept on March 23, 2018.
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The Office of Fair Housing and Equal Opportunity at the Department of Housing and Urban Development was designed to confront discrimination, segregation, and poverty. Instead, under the Trump administration, the agency is gearing up to confront a much stranger boogeyman: The emotional support snake.

For media and lawmakers, the idea of pet owners selfishly and fraudulently exploiting legal accommodations for Americans with disabilities has proven irresistible. It’s a story that hits all the right buttons: entitled and oversensitive pet owners, smitten with ridiculous animals, lying to befuddled businesses, and, with the weight of federal law behind them, forcing workaday Americans to endure the presence of an unwanted critter.

Fear of phony pups and fraudulent felines has been percolating for years. The idea got a big boost in 2014, when the New Yorker ran a piece featuring its author successfully testing the proposition that she could bypass many “no pets allowed” policies with a phony doctor’s note. She brought a 15-pound turtle into a museum, a 26-pound turkey into a restaurant, a snake into a movie theater, and an alpaca on a train. The journalist showed how easy it was to convince confused business owners to let her in with her exotic animals, since the cost of denying someone their legal accommodations is quite high.

The public got another dose of outrage this past January, when a woman tried to board a flight out of Newark International Airport with a peacock named Dexter. The passenger insisted her bird was an “emotional support animal,” which, under the Air Carrier Access Act, passengers can legally bring on planes. United Airlines didn’t buy it and refused to let her on. A few days later, United announced that it would be  tightening its policies around companion animals and now requires new documents to verify an animal’s health and training. Delta Air Lines did the same thing, and both companies say they’ve seen nearly double the amount of passengers flying with animals in recent years. “Dexter, unwittingly, may have struck a blow for sanity,” wrote New York Times columnist David Leonhardt in a recent piece titled, “It’s Time to End the Scam of Flying Pets.” Leonhardt said he hopes to see all airlines adopt “fairly strict” rules soon, and that the whole scandal is a “fascinating case study of how mass cheating can become acceptable.”

But while peacocks and “mass cheating” among pet owners make for juicy stories, civil rights advocates worry about where all this self-righteous anger is heading. Sources connected to HUD, helmed by Ben Carson, say that Anna Maria Farías, the federal assistant secretary for Fair Housing and Equal Opportunity, has said cracking down on assistance animals is a “priority,” and that HUD may issue new guidance restricting access to emotional support animals as early as the beginning of April.

The federal housing agency has been meeting with representatives from housing industry groups, including the National Apartment Association, but it has so far ignored entreaties from fair housing and disability rights groups to hold similar meetings, representatives of those groups say.

“The National Fair Housing Alliance has reached out to HUD about accommodation verification, but HUD has declined, thus far, to confer with us regarding this particular matter,” said Morgan Williams, the group’s general counsel, in a statement to The Intercept. “We expect HUD would meet with fair housing and disability rights advocates in the course of any consideration of guidance on reasonable accommodations and assistance animals under the Fair Housing Act.”

Brian Sullivan, a spokesperson for HUD, told The Intercept that the agency has no comment at this time on whether it plans to issue further guidance on emotional support animals.

The agency’s refusal to publicly comment on the issue, combined with its meetings with housing industry groups, has advocates bracing for things to get worse. Under federal law, individuals with physical or mental disabilities can bring assistance animals with them on planes or keep them in their homes, and they can also bring trained service dogs to other public places. But in just a few short years, 21 states have moved to criminalize the misrepresentation of such animals, with another 13 drafting similar legislation to take up this year. Advocates note that evidence for a supposed fake assistance animal crisis has been extremely limited, and many times outrage can be traced back to mental health stigma more generally.

“There are unfortunately people who take advantage of laws intended to protect people with disabilities, but I think the problem has been blown completely out of proportion,” said Marcy LaHart, an attorney in Florida who represents individuals denied reasonable animal accommodations. “What I see far more is people who have legitimate mental health issues — things like depression, anxiety, and panic attacks — who are harassed because they don’t know what they need to do, what they need to provide, to verify their legitimate need. They’re automatically assumed to be frauds because they don’t ‘look disabled.’”

In the popular consciousness, service dogs and emotional support animals are essentially interchangeable. But legally, they’re very different things: the former protected by Americans with Disabilities Act and the latter coming from the Fair Housing Act.

The Americans with Disabilities Act and related regulations say that service dogs, which have been “trained to do work or perform tasks” related to a specific disability, must be given broad access to public places where pets are typically not allowed. The ADA sharply limits inquiries related to the animal. All that can be asked of the owner is whether their dog is needed because of a disability, and what tasks it has been trained to perform. It’s illegal to request documentation for the service dog or to inquire about the owner’s disability.

In some ways, the protections of the Fair Housing Act are much broader. The FHA (in combination with Section 504 of the Rehabilitation Act) gives individuals the right to keep “emotional support animals” in their homes, provided they can produce a letter from a trained professional that says an animal could help them cope with mental or physical issues, including anxiety, depression, and post-traumatic stress disorder. Unlike the ADA’s service dogs, emotional support animals do not have to be specifically trained to perform specific tasks, and they do not have to be dogs.

The confusion over these differences stems in part from the fact that, while people are generally restricted to keeping their emotional support animals at home, they can also take them on planes. It’s not a coincidence that many high-profile complaints about ostensibly ridiculous support animals involve encounters during air travel: that’s the only public place the law requires them to be allowed. (Even then, there are some exceptions, such as the case of Dexter the peacock.) But planes are about the extent of it: People who rely on emotional support animals can’t take them into restaurants, schools, and movie theaters, all places where trained service dogs are allowed entry under the ADA.

Now, civil rights advocates say they hear that HUD plans to issue new guidance soon, in an effort to rein in alleged emotional support animal fraud.

Mary Rosenberg and Ken Walden, two disability rights lawyers who work at the Chicago-based Access Living with connections to HUD, told The Intercept  their sources say the forthcoming guidance might place new limits on acceptable breeds of emotional support animals (barring pit bulls, for example), erect new hoops for who can verify a disability, and prohibit certain exotic or non-traditional animals.

“What we heard was that Anna Maria Farías essentially thinks emotional support animals might be appropriate for armed military veterans with PTSD, but not really for people beyond that,” said one national fair housing advocate, “based on nothing more than her personal whim.”

Indeed, this past fall HUD filed a charge against a West St. Paul, Minn., apartment complex that ordered an army veteran to get a cat instead of a dog. “Assistance animals play a vital role in helping our veterans cope with service-related disabilities,” said Farías in a press release, that exclusively referred to the tenant as a veteran. HUD declined to make Farías available for an interview.

If HUD does decide to issue new guidance around emotional support animals, how it will comport with past HUD legal interpretations is not yet clear. In 2013, HUD issued guidance that civil rights groups viewed favorably, which clarified housing providers’ legal obligations in relation to the Americans with Disabilities Act. (More than half of all fair housing complaints concern individuals with disabilities, and nearly half of those involve animal-related issues.)

“One issue with new guidance from HUD is there are a lot of people who already have emotional support animals, and this could send them into a limbo,” said Rosenberg. “Whatever the guidance is, it might make it seem like individuals are not allowed to have the animals they already live with, which could fuel a lot of anxiety and confusion.”

“It remains unclear to us if new guidance would supplant the old guidance, contradict it, or complement it,” added Walden.

Federal guidance does not carry the same legal power as statutes or regulations. However, like the Obama-era guidance on transgender bathrooms in public schools, the promulgation or repeal of federal legal interpretations can carry political implications and shape policy.

One major reason critics say there’s an urgent need to crack down on alleged fraud is because of the growth of new websites that sell inexpensive documentation that falsely identify pets as service dogs or emotional support animals. Even in apartments where pets are allowed, buildings often charge tenants a monthly or annual pet fee. But if an animal is considered an emotional support animal, not a pet, landlords (and airlines) can’t charge tenants (or passengers) for their animals. Many suspect that non-disabled individuals are using this new cottage industry to bypass pet fees, or policies that prohibit pets. The New Yorker article noted that the National Service Animal Registry, a commercial business that sells certificates, vests, and badges for helper animals, signed up 11,000 emotional support animals in 2013, up from 2,400 in 2011.

But civil rights advocates say there are major misconceptions about these websites and those who turn to them. While writers like Leonhardt characterize customers as selfish and intentional cheats, advocates say plenty of people who turn to these sites have real needs and may not understand that what they’re doing is illegitimate.

“Just because someone uses one of these websites doesn’t mean they don’t have a disability,” said Williams, of the National Fair Housing Alliance. “They may have no concept that they’re using a website that other people might deem problematic.”

“Sometimes I have people come to me who have already gotten a certificate from an online vendor and generally we’ll explain to them that those aren’t sufficient under the Fair Housing Act,” said LaHart. “We’ll ask them to get a letter from a provider who can truly verify their need, and that’s pretty much it, and we’ll proceed from there. Some people don’t have doctors or were just mortified at having to discuss mental illness. They might think they’re weak because they suffer from depression. I find that particularly in the older generation.”

LaHart calls the online companies selling fake animal support letters “crooks” and says governments should be going after the sellers, not the buyers. “There’s a way to go after those providers and not throw the baby out with the bathwater,” she said.

Aside from pointing to how easy it can be to obtain fake certification and swag, disability rights lawyers emphasize that there’s been very little proof of actual widespread fraud. They suspect that housing providers are more likely looking for ways to limit their liability under the Fair Housing Act. One major difference between the Fair Housing Act and the Americans for Disabilities Act is that individuals who have been discriminated against can only sue for monetary damages under the former. Matthew Dietz, a disability rights lawyer, told The Intercept that in his practice, the Fair Housing Act has a lot more teeth. “When I sue a condo association, I sue the association itself, I sue the property manager, and I sue each and every individual on the board of directors,” he said.

The Intercept asked the National Apartment Association for statistics or survey data it uses to show that there’s been an increase in problematic requests for animal accommodation.

Nicole Upano, the NAA’s senior manager for government affairs, responded by pointing to the 2014 New Yorker article, and added that as of this week, the National Service Animal Registry had registered 181,984 service and emotional support animals. “To put this number in perspective, NAA is aware of more than 20 websites or online providers that offer documentation to their customers in exchange for a fee,” she said.

Though it is possible that some of those websites also sell fake doctor’s notes, these figures don’t shed real light on alleged fraud in housing because certified animals — fake or not — are not relevant for securing accommodations under the Fair Housing Act. In the housing context, emotional support animals don’t need certification. Tenants just need a third party to verify that they have a disability and could benefit from living with an animal.

In addition to lobbying for new federal regulations that would crack down on alleged fraud, housing industry groups have also been pushing for legislation on the state level to limit access to emotional support animals. While many of these efforts are framed as ways to better protect the rights of those with legitimate disabilities, civil rights advocates worry the new statutes could have the adverse effect of preventing or deterring people from receiving accommodations to which they are legally entitled. For example, new legislation signed this month by South Dakota Gov. Dennis Daugaard requires tenants seeking to live with an emotional support animal to provide verification that comes “from a licensed health care provider.”

But under HUD’s 2013 guidance, for example, legitimate third parties include social workers, not all of whom have clinical training. In some cases, animal trainers, case workers, or even guidance counselors have testified to an individual’s need for an assistance animal. “We worry these laws could have a chilling effect on tenants and anyone who was called upon to verify their need for assistance,” said Walden, a disability rights lawyer.

Florida passed a law in 2015 that makes it a crime for people to falsely claim that they need service dogs. LaHart, the attorney, notes that even though the law doesn’t apply to emotional support animals, condominium associations have sometimes pointed to it as a way to scare tenants seeking accommodations.

“Condo lawyers and sometimes board members will try to use the new law as a way to intimidate people who have asked for a housing accommodation,” she told The Intercept. “I think there is definitely potential for a chilling effect. And I never even see the people who don’t come into my office who get those kind of letters [from condo associations] and just give up.”

Proponents of the new restrictions say they don’t necessarily want to lock people up for their cats and dogs, but that there needs to be more societal pressure and social stigma on non-disabled individuals who break the laws. “The moral compass is gone from people,” one Minnesota resident who wants to see her lawmakers crack down on animal fraud told a local news outlet.

But at the end of the day, advocates say, much of the debate stems from people questioning both the legitimacy of an individual’s disability, and an individual’s preference to use animals as their preferred coping mechanism. National media has certainly done its part to fuel public distrust. While existing research on the benefits of emotional support animals is mixed and limited, recent stories have nonetheless taken to casting assistance animals in a notably negative light. “Therapy animals are everywhere. Proof that they help is not,” read one Washington Post headline from last summer. “The Surprisingly Weak Scientific Case for Emotional Support Animals” read another recent story in Vox.

Dietz, a disability rights attorney, says these kinds of articles are missing the point. “As a society we treat medication, like Xanax or Prozac, as a more acceptable response to anxiety and depression, even though the costs are so much more and the efficacy may not be as much,” he said. “Just as you wouldn’t ask someone, “Does your Prozac really help you?” — you shouldn’t be arguing with someone about if their dog really does provide them with mental and emotional support. The person with the disability should be the one in charge of their own health and the way they care for themselves. And as long as it doesn’t bother anyone else, an accommodation should be made.”

For Dietz, service animals are just the latest in what he sees as a long history of challenging accommodations for people with disabilities, and he says it certainly won’t be the last. “A couple of years ago, the biggest issues were parking spaces,” he said. “People debated whether a person was really disabled enough to need the parking space, and how visible does the disability need to be. In five years, it’s going to be whether the person can really smoke marijuana in their house or is that an unreasonable request? As time goes on, how we choose to treat people with disabilities and the accommodations available to them change.”

For all the hype and chaos, one team of researchers noted the lack of objective data surrounding the public’s understanding of service and emotional support animals, and decided to administer an anonymous online survey to those who do not have one of their own. Their study, published last year in the International Journal of Environmental Research and Public Healthfound that “despite the media’s focus on abuses and false representations of these dogs, most participants reported feeling the majority of people are not taking advantage of the system.”

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