BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON VETERANS AFFAIRS
                             Senator Jim Nielsen, Chair
                                2015 - 2016  Regular 

          Bill No:             SB 866         Hearing Date:    4/12/16
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          |Author:    |Roth                                                 |
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          |Version:   |3/14/16                                              |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Wade Teasdale                                        |
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                             Subject:  Veterans housing

           DESCRIPTION
            
          Summary:
           Authorizes a housing developer or service provider that receives  
          bond moneys under the Veterans Housing and Homeless Prevention  
          Bond Act of 2014 (VHHP), to provide housing or services to  
          veterans and their children in women-only facilities in limited  
          instances, as specified.

           Existing law:
           1)Enacts the VHHP, also known as Proposition 41, which  
            authorized the issuance of $600 million in general obligation  
            bonds to provide multifamily housing to veterans pursuant to  
            the VHHP.

          2)Requires specified state departments to collaborate in  
            establishing and implementing VHHP housing programs that focus  
            on veterans at risk for homelessness or experiencing temporary  
            or chronic homelessness. (Department of Housing and  
            Community-HCD, Department of Veterans Affairs-CalVet,  
            California Housing Finance Agency-CalHFA)

          3)Requires the departments, to the extent feasible, to  
            prioritize VHHP projects that combine housing and supportive  
            services, including, but not limited to, job training, mental  
            health and drug treatment, case management, care coordination,  
            or physical rehabilitation.

          4)Prohibits discrimination in housing based on race, color,  







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            religion, sex, sexual orientation, marital status, national  
            origin/ancestry, familial status (households with children  
            under age 18), source of income, disability, and age.
           
          This bill:
           1)Establishes the "Veterans Housing and Homeless Prevention Act  
            of 2016: Proposition 41 Expenditures: Military Sexual Trauma."

          2)For specified purposes, defines "women-only facilities" as  
            those that may house and provide services to female veterans  
            only and their children, and shall not house or provide  
            services to any adult who is not a dependent of a female  
            veteran.

          3)Provides that a housing developer or service provider - that  
            receives VHHP bond moneys - may provide housing or services to  
            female veterans and their children in women-only facilities in  
            limited instances, specifically when a female veteran:

             a)   Has suffered any form of sexual abuse, trauma, or  
               intimidation or harassment while serving in the military  
               and is seeking treatment for that sexual abuse, trauma, or  
               intimidation or harassment, or (B) is seeking the housing  
               or services as a result of being a victim of sexual abuse  
               or domestic violence; or

             b)   Is seeking the housing or services as a result of being  
               a victim of sexual abuse or domestic violence.

          4)Provides that a housing developer or service provider that  
            provides housing or services to female veterans in women-only  
            facilities pursuant to paragraph (1) shall ensure that the  
            housing or services shall provide supportive housing or  
            services with a focus on, among others, treating the effects  
            of military sexual abuse, trauma, or intimidation in a  
            gender-specific manner.

          5)Makes legislative findings and declarations:

             a)   The significant number of women veterans, as a  
               percentage of all veterans, and also as California's share  
               of the nation's total population of women veterans.

             b)   The statistical percentage of women veterans who have  








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               experienced military sexual trauma (MST).

             c)   The life-changing consequences of MST on victims,  
               including, for example, the increased risks post-traumatic  
               stress disorder (PTSD) of becoming homeless following  
               separation from the military.

             d)   The need to ensure that women veterans, particularly  
               those who have suffered MST and its negative consequences,  
               receive women-centered treatment, which has been  
               demonstrated to be "the most important factor contributing  
               to their comfort" with federal veterans' benefit services.

             e)   Providing gender-specific treatment and housing,  
               pursuant to this act:

               i)     Serves a compelling state interest, which interest  
                 is providing the best possible treatment to female  
                 veterans, who have served our country and who now face  
                 additional hurdles that disproportionately affect female  
                 veterans over male veterans.

               ii)             Is substantially related to the achievement  
                 of those objectives.

                                           
          BACKGROUND
           
           Veterans Housing and Homelessness Prevention Program
           According to a federal agency report to the Congress:

           A veteran is 50 percent more likely to be homeless than a  
            nonveteran. Although only eight percent of adults in the  
            United States are veterans, federal surveys suggest that  
            veterans represent up to 16 percent of America's homeless  
            population.

           According to one major point-in-time survey, on a given night  
            nearly half of homeless veterans were concentrated in just  
            four states: California, Florida, Texas, and New York - even  
            though only 28 percent of all veterans were located in those  
            same four states.

          In November 2014, voters approved the VHHP Bond Act of 2014,  








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          also known as Proposition 41, which authorized the issuance of  
          $600 million under AB 639.

          The VHHP requires CalHFA, HCD, and CalVet to establish and  
          implement a program that focuses on veterans at risk of  
          homelessness or experiencing temporary or chronic homelessness.   
          This program will fund the acquisition, construction,  
          rehabilitation, and preservation of affordable multifamily  
          supportive housing, affordable transitional housing, affordable  
          rental housing, or related facilities for veterans and their  
          families to allow veterans to access and maintain housing  
          stability.

          More specifically, the Act requires the program to:

            1)     Leverage public, private, and nonprofit funding  
                 sources;
            2)     Prioritize projects that combine housing and supportive  
                 services, including but not limited to: job training,  
                 mental health, drug treatment, case management, care  
                 coordination, or physical rehabilitation; and 
            3)     Ensure that program guidelines and terms provide  
                 requirements or scoring criteria to advance applicants  
                 with that combine permanent or transitional housing, or  
                 both, with supportive services for veterans, or for  
                 partnering with housing developers or service providers  
                 that offer housing or services to veterans.

           Unique Needs of Women Veterans
           A recent report by the federal Government Accountability Office  
          found that women veterans identifying themselves as homeless  
          more than doubled, increasing by more than 140% from 2006 to  
          2010. During the same time frame, there was a 45% increase in  
          homelessness for male veterans. 

          For female veterans, especially those who have suffered from  
          military sexual trauma, living in a housing facility that houses  
          mainly men poses serious safety and health risks.  Women do not  
          feel comfortable or safe in these facilities. Most (about 60%)  
          of transitional housing facilities do not allow young children.  
          This limitation, combined with the safety risks of living in  
          male dominated facilities, makes finding housing for female  
          veterans with children nearly impossible. SB 384 seeks to  
          eliminate some of these barriers by ensuring that funding is  








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          available for housing for underserved veterans - allowing  
          construction of facilities that serve this vulnerable  
          population.

          In a recent white paper ("Women Veterans Must Have Equal Access  
          to Veteran-Only Permanent Housing Facilities under the Fair  
          Housing Laws," March 2016), the Women's Law Center stated:

               "Veteran-only supportive housing facilities are intended to  
               couple access to medical and social services with permanent  
               housing solutions, serving an essential function in helping  
               veterans who have encountered difficulty adjusting to  
               civilian life get back on their feet. Many veterans are  
               confronted with mental and physical health issues resulting  
               from their military service. For example, many women  
               veterans who were the victims of military sexual trauma  
               (MST) suffer from PTSD and other related disabilities.  
               Supportive housing is intended to serve all veterans and to  
               accommodate and serve veterans with disabilities, among  
               others.

               Women veterans, however, are deterred from seeking  
               veteran-only housing or are effectively being denied equal  
               opportunity to use and enjoy such facilities because of  
               conditions such as MST-related PTSD. These disabilities are  
               exacerbated when women veterans who suffered MST are  
               required to live in an environment that triggers their  
               experience of being in the male-dominated military where  
               they were assaulted or harassed. Women veterans have  
               legitimate concerns about their mental and physical  
               well-being living in such facilities because veteran-only  
               housing providers fail to make gender-specific  
               accommodations for MST-related disabilities."

           Equal Opportunity/Anti-Discrimination Law 
           In November 1996, California voters approved Proposition 209,  
          also known as the "California Civil Rights Initiative," which  
          prohibits the State from using race and gender conscious  
          decision-making in the areas of public employment, public  
          education, and public contracting or procurement.

          The Fair Employment and Housing Act, which includes the  
          California Family Rights Act, prohibits harassment and  
          discrimination in employment on the basis of numerous specified  








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          attributes, including sex, gender, gender identity, and gender  
          expression. 

          Under the Unruh Civil Rights Act, all persons are entitled to  
          full and equal accommodations, advantages, facilities,  
          privileges, or services in all business establishments,  
          including both private and public entities. The Unruh Civil  
          Rights Act protects all persons against arbitrary and  
          unreasonable discrimination by a business establishment. 

          Some debate has occurred within the women's and veterans'  
          advocacy communities that existing anti-discrimination law may  
          hinder the state's ability to accommodate the needs of women  
          veterans with MST-caused disabilities by permitting veteran-only  
          housing providers to provide the option of separate housing for  
          women veterans.

          However, others have opined that the failure of housing  
          providers to grant equal access to veteran-only permanent  
          housing to women veterans, who have incurred disabilities as a  
          result of military sexual trauma, constitutes disability  
          discrimination. The Women's Law Center says:

               Both federal and state law prohibits discrimination in  
               housing, including discrimination based on disability. For  
               example, the federal Fair Housing Act and its amendments  
               (the "FHA") were enacted to provide for fair housing  
               throughout the United States. The FHA has a broad reach and  
               encompasses the owner, operator and manager of any covered  
               property, as well as those involved in the design or  
               construction of covered housing. The FHA has two important  
               tenets: (1) a mandate not to discriminate and (2) an  
               affirmative duty to accommodate the needs of protected  
               classes to ensure that they have equal access to housing  
               facilities. Specifically, the FHA makes it unlawful "[t]o ?  
               make unavailable or deny, a dwelling to any person because  
               of race, color, religion, sex, familial status, or national  
               origin" or "make unavailable or deny, a dwelling to any  
               buyer or renter because of a handicap." A "handicap," more  
               commonly referred to as a "disability," is defined as "a  
               physical or mental impairment which substantially limits  
               one or more of such person's major life activities." Mental  
               and emotional illnesses, such as depression and PTSD,  
               qualify as disabilities for purposes of the FHA. Thus, MST  








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               victims who suffer from PTSD, depression and other mental  
               health illnesses qualify as "disabled" under the fair  
               housing laws and are entitled to their protections.

               The FHA defines discrimination to include the "refusal to  
               make reasonable accommodations in rules, policies,  
               practices, or services, when such accommodations may be  
               necessary to afford [a disabled] person equal opportunity  
               to use and enjoy a dwelling." A reasonable accommodation is  
               one that is necessary to give a resident an equal  
               opportunity to use and enjoy a dwelling. It is "reasonable"  
               when the requested accommodation imposes neither an undue  
               financial or administrative burden on the housing provider,  
               nor causes a fundamental alteration in the housing  
               provider's business operation. Such accommodation is  
               "necessary" if, without the accommodation, a person will be  
               denied an equal opportunity to use and enjoy the dwelling.  
               And where the accommodations are both reasonable and  
               necessary to ensure equal access, the FHA requires housing  
               providers to cover the costs of these accommodations.

               Female veterans with MST-related disabilities do not  
               currently have equal opportunity to use and enjoy  
               veteran-only housing facilities absent the option of  
               separate housing . . . . 

          The Women's Law Center argues that "separate housing is a  
          reasonable and necessary accommodation for MST-related  
          disabilities," noting that "(t)he option of separate housing is  
          a reasonable accommodation because it can be implemented on an  
          individual facility basis and does not necessarily require  
          costly or substantial changes to the housing facility's  
          operations."
                                           
          COMMENT
           
           1)Author Comments  :  
             "Women who were assaulted, raped, or sexually harassed during  
            their service suffer from the effects of MST for years in the  
            form of psychological, physical, and social problems. This is  
            because MST victims have been found to suffer different and  
            more severe mental health symptoms than civilian women who  
            have been sexually assaulted. The VA has reported that  
            approximately 1 in 4 female veterans report experiencing MST.  








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            This translates to a rate of sexual assault 12 times higher  
            than that for the civilian female population. Making up only  
            4% of the Veteran Population, female veterans often report  
            feeling intimidated in predominantly male facilities, where  
            sexual assaults remain to be all too common. This concern for  
            their own safety often leads women, especially those who have  
            suffered from MST, to be deterred from accessing the housing  
            and supportive services they need and deserve.

            "MST victims are nine times more likely to exhibit PTSD  
            symptoms than those who have not been sexually assaulted.  
            Symptoms become exacerbated when female veterans who suffered  
            MST live in an environment that triggers their experience in  
            the male-dominated military where they were assaulted or  
            harassed. Female veterans have legitimate concerns about their  
            mental and physical well-being living in such facilities  
            because veteran-only housing providers often fail to make  
            gender-specific accommodations for female veterans with MST.  
            When available, female veterans have reported that women  
            centered treatment was the most important factor contributing  
            to their comfort with VA services. California must ensure that  
            women centered treatment is available under the housing built  
            with Proposition 41 bonds."
           
            2)Committee Comments  :  
             Concerns exist that existing anti-discrimination law may  
            hinder the ability to deliver women-centric housing and  
            treatment under the VHHP program. This bill is, in part, an  
            attempt to address those concerns. Neither the administering  
            agencies nor the Department of Fair Employment and Housing  
            have produced legal analyses that clarify specifically where  
            in law the various concerns are generated.

             a)   What, if any, is the relevance of the California  
               Constitution (Article 1, § 31), which states, in part:

               "The State shall not discriminate against, or grant  
               preferential treatment to, any individual or group on the  
               basis of race, sex, color, ethnicity, or national origin in  
               the operation of public employment, public education, or  
               public contracting.

               And also states:









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               "Nothing in this section shall be interpreted as  
               prohibiting bona fide qualifications based on sex which are  
               reasonably necessary to the normal operation of public  
               employment, public education, or public contracting."

               i)     Does the VHHP Program constitute a form of public  
                 contracting?

               ii)             Do the gender-specific health needs of  
                 disabled women veterans, who are MST victims, constitute  
                 a bona fide qualification based on sex that may justify  
                 gender-specific, disability-related policy responses,  
                 including housing segregated by gender, by the State?

             b)   How do evolving legal definitions of gender identity and  
               gender expression factor into this bill's policy concerns?

             c)   Do the concerns represent a potential conflict between  
               (i) a requirement to prohibit gender discrimination and  
               (ii) a requirement to act affirmatively and without  
               resource discrimination in meeting the needs of disabled  
               persons? If so, are there any relevant precedents that may  
               help devise a balancing test?



           3)Related Legislation

              SB 384 (Leyva, pending Assembly, 2015  ) in order to help meet  
            the specific housing needs of underserved veterans, sets aside  
            a percentage of any state funds being used to acquire,  
            construct, rehabilitate or preserve multifamily housing units  
            for underserved veterans.
             
            AB 639 (J. Pérez, Ch. 727, Stats. 2013  ), authorizes issuance  
            of $600 million in general obligation (GO) bonds to fund the  
            acquisition, construction, rehabilitation, and preservation of  
            multifamily supportive housing, affordable transitional  
            housing, affordable rental housing, and related facilities for  
            veterans and their families, if approved by the voters at the  
            June, 2014, statewide election. (As Proposition 41, the  
            measure was approved by the voters 65.4% to 34.6 %.)










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           POSITIONS
           
          Sponsor:  Author

          Support:  National Association of Social Workers

          Oppose:   None received


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