Human Rights and
the Right to Housing
The Centre for Equality Rights
"Housing is a right." The idea is gaining some momentum these days. Politicians proclaim it; buttons announce it; two conferences have been convened around it in the past year; a special issue of Canadian Housing was published about it. Now we even have an art exhibition to affirm it.
This new interest in rights is relatively new to the field of housing. Housing and human rights have not, in the past, been on a convergent path. Among most anti-poverty and housing activists, human rights approaches have usually been either ignored or rejected, for some good reasons.
The Human Rights Commission has been largely inaccessible to poor people. There are lengthy backlogs and a frustrating bureaucracy to contend with, and little support available for those who find the process alien and ineffective. On a more theoretical level, activists have always been sceptical about a system that is so steeped in traditional liberalism. Human rights are generally contractual in orientation, individualistic and legalistic - not the kind of milieu we are inclined to recommend to poor people, who are so often victimized and abused in such surroundings.
Left to its own prejudices and devices, the Ontario Human Rights Commission largely excludes issues such as homelessness and poverty. Moreover, it tends to deny poor people, homeless people and others the chance to claim even traditional non-discrimination rights and remedies claimed by the more privileged.
Housing cases make up less than one tenth of the Commission's caseload, and result in cash awards that are on average one fifteenth of those in employment cases. Discrimination against social assistance recipients in housing is incredibly widespread, yet it appears in less than 1% of the Commission's cases. Not a cent was awarded in settlement of complaints of discrimination on this ground, although nearly $4 million in settlements was approved by the Commission last year. Human rights remedies are thus denied to the most vulnerable among those they are intended to protect.
If the human rights movement has not addressed housing issues, however, neither has the housing field been very conscious of human rights. Questions on application forms about marital and family status that would never be acceptable in employment applications are routinely included by "progressive" housing providers. Most social housing producers require good credit rating, landlord references and healthy incomes to qualify for the housing they provide, yet they espouse housing as a right.
Many in the housing field assume that a right to housing could be realized by merely establish an obligation on the federal and provincial governments to provide more housing. This supply oriented notion of such a right sometimes conceals a latent antagonism to equality rights in the area of housing. At CERA we often hear this view propounded in similar terms by private landlords and social housing producers: if we had an adequate supply of affordable housing, we would eliminate discrimination.
The naive proposition that we could or should solve inequality simply by increasing supply is rather unique to the housing field. Disability rights organizations are not told that they should work to increase the number of jobs available so that employers are more inclined to hire people with a disability. Anti-poverty activists do not argue that the problem of hunger in Canada is a problem of food supply and suggest that we should focus our efforts on food production. But in the area of housing, it is more comfortable to avoid looking at who gets excluded from housing and why by focusing all of our attention on housing as a scarce commodity.
Certainly a right to housing would place obligations on governments, in the area of both regulation and expenditure. Public spending on housing is now at the absurd level of just over 1% of budget, absurd by international standards. But to advance the right to housing simply as an obligation on the government or any other body to "provide" housing leads us further down a road we have already travelled too far, toward the social control of poor people, women, ethno-racial minorities, aboriginal people and others through the provision of housing. Whether that control is exerted by means of the administration of subsidized housing as a social service, or by an assimilation model, more popular among community-based social housing projects, in which only a certain percentage of residents may be poor, the effect is largely the same. Groups and individuals facing social and economic discrimination are denied the opportunity to affirm their own entitlement, to control their own lives, to choose or design their own type of housing, to create their own neighbourhoods and to develop their own communities.
We need to approach the right to housing from an equality rights standpoint without, however, being drawn into a traditional liberal approach to rights. A claim to housing as a right, as long as it is claimed in its fullness and diversity by authentic rights claimants and is not confused with a social policy initiative disguised as a right, may well lead us to an important new rights based approach to social change. But we must prepare ourselves for a radical rethinking of human rights and how to claim them.
Ontario's Human Rights Code tells us about the prevailing notion of human rights "complaints" in Section 31(1) where it states that "where a person believes that a right of his under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission." According to the existing paradigm, human rights are "administered" in a form approved by the Commission and they belong to individual persons conceived in male terms. These prejudices in liberal human rights must be challenged if a right to housing is to be claimed with any success.
A right to housing cannot be administered. It is a transformational rights claim which challenges existing power arrangements. Claiming the right will effect fundamental social change. It is a right which, because it has not been institutionalized, still belongs to its claimants. It is easy to agree that every person has a right to adequate housing as long as the prerequisite societal, transformational claim that would make such a change in values and power structures realizable is silenced by a notion of administered rights.
More subtle, but no less important, is the implicit gender bias of traditional rights approaches. A human rights complaint as it is conceived within the liberal paradigm addresses injustice as a personal "injury" that is masculine in conception and language. Liberal rights are conceived as idealized but vulnerable appendages, pieces of property which must be contractually protected from competitors. Like the deal Freud imagined in Totem and Taboo to be struck among the brothers and the father in the primal horde, liberal rights are conceived as a deal struck by us men to protect ourselves from mutual dismemberment.
When the person is considered in the phallic terms of traditional rights, things like birth and nurturing tend to be devalued and excluded. It is difficult to make human rights work for groups like single mothers, pregnant teens and others who labour in unpaid work. These are the majority of those excluded from housing, yet when they contact the Human Rights Commission, the intake officer will question them on their income and references from past landlords. Their rights claims are often rejected because they are judged as lacking the necessary attributes to qualify for housing. It is accepted that a landlord will refuse to rent to a single mother on mother's allowance in favour of another applicant who has a $60,000 income. The Commission tends to view the inequality of poverty as being outside of its jurisdiction, and remains largely complacent about the widespread denial of housing to poor people.
There is something very foreign to the human rights system in the notion of a right to housing, including as it does such values as security, home, safety, warmth, material envelopment and community. These are themes which Carol Gilligan found recurrent among women articulating rights "in a different voice", but absent in prevailing male rights discourse, where material aspects of life are excluded in favour of abstract rules and characteristics.
Liberal rights suppress the physical, material, enveloping aspects of housing and home in favour of rules of property, privacy and economic competition. Traditional views of injury and injustice exclude poverty and homelessness because liberal rights are oriented toward loss rather than lack. Liberal rights are nostalgic, aspiring to the protection and restoration of an idealized equality of origin. We pretend that we all started out with individual property and we simply have to protect ourselves from violation of this personal property. Thus, rights will protect a homeowner from violation of the privacy and security of the home, but they won't address the need for a home in the first place. Where rights are infringed, the remedy is to restore one's lost property. It is assumed that we all have property to lose.
Poor people and homeless people are denied effective remedy in this traditional scheme of rights as "restoration" of loss. Obsessed with a fantasy of equality of origin, liberal rights insist on restoring original inequality. The remedy is to put you back where you started. If you are denied a highly paid job because of discrimination, you may be entitled to a significant amount of lost salary plus an offer of the executive job. But if you are denied a mouldy, damp basement apartment at $500 a month because you are a single mother on social assistance, all you are entitled to claim in the prevailing view is a mouldy basement apartment at $500 a month, or losses that arose from that denial, which won't amount to much because you don't have much to lose.
Claiming a right to housing thwarts this nostalgic idealism of human rights. It advances a claim to something that most poor people and homeless people have never had. It proposes a social and economic change that is progressive rather than restorative. But how do we claim such a right?
Human rights complaints consist of an argument in three parts. They first establish that an individual has a characteristic that is protected from discrimination, so they start out with "I am a single mother" or "I am Black." They then establish that there is discrimination against the group of people with this characteristic. "The landlord stated that they don't rent to single mothers" or "There are no Black people in the building." Finally, the complaint establishes an individual claim: "I believe that my right to equal treatment has been infringed."
This argument in three parts is what logicians call the syllogism. The example from classical philosophy was always "Socrates is a man. Men are mortal. Therefore Socrates is mortal." "I am black. Black people are treated unequally. Therefore I have been treated unequally." Of course, there are other ways of proving Socrates to be mortal, such as giving him a cup of hemlock. But in rights complaints, one can't establish discrimination against an individual except through argument by way of a group defined by a prohibited ground of discrimination.
The problem with the classical syllogism is what Hegel and Marx called the "woodenness" of the middle term. The individual is deprived of any historical or material relationship with the group to which she belongs. "Woman" becomes an abstracted attribute of the individual woman, Black becomes an adjective, a colour. The complexity of the individual's social relationships is reduced to a mere attribute. The active, collaborative, evolving relationship between a native woman claiming her rights, for example, and a movement of other indigenous women which envelops her and advances her claim with her is excluded in the resolution of the complaint, when a person must claim her rights as an isolated individual. The middle term, the "body" of the complaint, the plurality of "women" or "native people" upon which the claim is based, disappears, drops out of the final picture, when the rights claim becomes a strictly personal matter.
In one of our recent cases, Heather Sinclair, a Black single mother on social assistance challenged the policies of non-profit housing providers to restrict access to market rent apartments on the basis of income level. She was originally turned away by the Human Rights Commission but filed her complaint through CERA and joined our board of directors. She became an important part of a nascent movement for a right to housing, advancing the first challenge to the disqualification of poor people from housing on the basis of their poverty. CERA joined other organizations representing poor people, young mothers, social assistance recipients, tenants and the co-op housing movement in seeking intervenor status before the board of inquiry.
But when the parties (that is, the claimant, the respondent and the Commission) entered settlement discussions during the hearings, we encountered the isolating, contractual moment that occurs at the resolution of the complaint syllogism, when the individual claimant is separated from the movement created or advanced by her claim. Ms. Sinclair was instructed not to discuss the settlement with any of the groups intervening in support of her claim. The Human Rights Commission refused even to read a letter from the intervenors and at the board of inquiry we were suddenly treated as interlopers trying to break up a private party. Significant regressive policy changes were negotiated without any contribution from or discussion with the groups that will be affected by them.
In a new rights based approach to housing and homelessness, we will have to resist this fossilization of the relation between the individual claimant and the movement, so that a rights claim isn't reduced in the end to a contractual obligation between parties. We must learn to sustain the middle term of the syllogism, the equality claim in its broader social dimension, to maintain the collaborative relationship between the individual and supportive groups, without in any way over-riding the distinctiveness of the individual claim.
The right to housing affirms the complex interplay between individuals and groups, including both personal space and collective neighbourhood, security of both the individual and the community. It will be claimed in a variety of political spaces, from a plurality of struggles. It not only includes housing provision but also addresses inequities in tenure, in distribution of existing resources, violence and inequity within the household, design and production, urban and rural issues, home and community, freedom to move or to stay put, access to knowledge and resources, land and property. It is claimed by an individual woman in her relationship with a man, by young mothers, by neighbourhoods under attack, by squatters, indigenous people, people with a disability, people of colour, former residents of psychiatric institutions, single persons and families.
There need be no predefined conformity to these claims. What will be shared within the movement as a whole is a common determination that none will be silenced, that each will be heard in its own voice and language. We may rediscover in this plurality the dynamic of social change as the accomplishment of a complex inter-action of individual and group entitlements and actions, of equality-seeking movements and personal claims of discrimination, of legal and institutional reform combined with an affirmation of the commonplace, of material well-being, security of place and habitat.