Breed discriminatory practices take on two forms, law and private policy. It is important to be able to articulate the difference between the two so that we are conveying the best and most accurate information possible to our audience.
When breed discrimination is enshrined in law it is referred to as BSL, Breed Specific Legislation, or, interchangeably, BDL, or Breed Discriminatory Legislation.
The most pertinent part of this acronym is the “L,” Legislation. In order for something to be considered BSL or BDL, it must be part of the law. This means that a legislative body drafted or had drafted for them, an ordinance that is then heard by a legislative body and voted on.
Breed Specific Legislation is specifically defined as a law that is passed by a legislative body that targets dogs based on appearance. Though they may take on different forms, that is a key to the definition of BSL.
BSL is created through standard legislative processes and are subject to the checks and balances that all other laws are subject to. The actual specific process varies from place to place, based on how the local laws control the passage and introduction legislation. It also varies based on the level, city, county or state, at which the legislation is being passed.
This sort of breed discriminatory practice is open to public in put, and with the right methods, can be very easily derailed. They are also open to legal challenges because issues of property rights and due process must apply to all laws.
The second way breed discrimination manifests is through private policy. This could be a shelters policy to make certain types of dog available to rescue only, or to not allow them to leave the shelter at all, a doggy daycares and dog parks that refuse to admit certain breeds or types of dogs, or a stores policy that does the same. Most commonly, private policy takes the form of a landlords refusal to rent to the owner of a certain type of dog. This is by no means solely a “pit bull” issue. Rottweilers, Dobermans, Akitas, Chows, Huskies, American Bull Dogs, Mastiffs of all kinds, the list of dogs that are restricted by housing is endless.
Landlord policies are typically driven by discriminatory practices in the insurance industry. Personally, a landlord may be open to allowing all dog owners to rent, but their insurance coverage will most likely contain breed exclusions. In order to protect themselves from liability issues, these exclusions are then passed down to the renter.
In many cases, these policies are not a reflection of the personal opinion of the landlord. It is a common misconception that it is simply a lack of understanding of dogs that drives these policies. While there are certainly landlords out there who have breed exclusions because of a personal bias, for the most part it is not up to the landlord to be able to allow tenants with dogs that they are not covered for.
Should a landlord do so, in violation of their insurance coverage, the insurance company will drop their coverage, which can be catastrophic to both the landlord and the tenants should a situation arise where a person is injured on the property or there is some kind of natural disaster that results in damage to the property.
Housing discrimination is more systemic and extremely difficult to change because the policy is not being dictated by the landlord but by their insurer. These policies are rarely, if ever, open to public in put, and are very difficult to change. It is not open to any checks and balances seen in legislation except for the ADA.
The ADA, or Americans with Disabilities Act, requires that landlords must make reasonable accommodations for persons that have a disability and use a service animal. The ADA addresses issues of breed discrimination specifically, stating that legitimate service dogs cannot be discriminated against because of the breed or type of that dog. This is one of the only ways that policy is open to legal challenge.
The key word here is legitimate. Faking a service dog of any kind not only does extreme harm to those who need one, but also creates hardships for the people who are being duped by dishonest “handlers.” Under no circumstances should an animal that is not meeting a real need as a service or emotional support animal attempt to be passed off as such to avoid such policies.
Doggie daycares, boarding, grooming and other areas where breed based policies are found are also often driven by insurance issues. A business must carry insurance and businesses that deal with animals tend to have to abide by very stringent practices handed down by their insurance companies.
A point that complicates these sorts of businesses is that many of them are rented from a commercial landlord. This brings us back to the same points regarding discriminatory policies that effect housing.
Breed discriminatory law tends to be more malleable then breed discriminatory policy in part because the maker of the law is accessible while the maker of the policy is not. Laws are required to meet due process and a measure of constitutionality as well as maintaining property rights, while policy is not. Law is open to legal challenge, policy is not (except as discussed regarding the ADA).
This is not to say that policy cannot be changed. There have been cases of such policies being changed, particularly in shelters with adoption policies. When there are no issues at play behind the scenes, such as insurance, it is possible to change these policies.
Understanding the difference between the two helps to create a better and more streamlined plan of action for combating them. What works to change law often does not for policy and the other way around. When we do not recognize the difference between the two, efforts to counteract them are misplaced. Energy is wasted on the wrong methods and subsequently no change is made.
Recognizing the differences and what drives each one allows advocates to focus and tackle the issue more effectively.
https://www.pbaus.org/law-private-policy-different/
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