10-5 is Repealed; Now What?

Justice and reconciliation requires more

As I am certain you know, NAR came to its senses and largely neutered its Speech Code, SoP 10-5. NAR did not repeal the Speech Code, as I have repeatedly urged them to do, but they did make significant changes to it such that it likely cannot be used as a weapon against conservatives and Christians.

After such changes, I wasn’t planning on doing yet another piece on the Speech Code, but so many of you have asked for my thoughts both publicly and privately. Well, as it happens, there is one aspect to this saga that has not yet been addressed, and with NAR having done at least partially the right thing, I thought I would offer them some free advice (worth what they paid) for moving forward.

This is a public post, as it is of wide general interest, and these are merely my opinions and not representative of my friends, family, companies, clients, anybody I know.

TL;DR version: NAR needs to make things right with those persecuted under the Speech Code, then bring accountability to those who weaponized it in bad faith. As the image above suggests, we cannot have peace within the industry without justice.

The New SoP 10-5

Let’s start with the changes to 10-5. You can find the changes directly from NAR.

Standard of Practice 10-5

REALTORS®, in their capacity as real estate professionals, in association with their real estate businesses, or in their real estate-related activities shall not harass any person or persons based on race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity.

As used in this Code of Ethics, harassment is unwelcome behavior directed at an individual or group based on one or more of the above protected characteristics where the purpose or effect of the behavior is to create a hostile, abusive, or intimidating environment which adversely affects their ability to access equal professional services or employment opportunity. (Adopted and effective November 13, 2020, Amended 1/23 and 6/25) [Emphasis added]

The main changes are:

The updated language now aligns the definition of “harassment” with the NAR Member Code of Conduct and focuses its application on instances in which REALTORS® are operating in their professional capacity, consistent with similar ethical requirements applied by other large trade associations across the country.

While I don’t see the need for this at all when Article 10 prohibits discrimination, and there is no scenario where harassment (see below) would not also constitute discrimination, the fact that NAR limited application of 10-5 to “professional capacity” is a major improvement. So give credit where credit is due: NAR did the right thing here.

What is Harassment?

We get a definition of harassment in the new 10-5 language:

[H]arassment is unwelcome behavior directed at an individual or group based on one or more of the above protected characteristics where the purpose or effect of the behavior is to create a hostile, abusive, or intimidating environment which adversely affects their ability to access equal professional services or employment opportunity.

But we also get clarification that “harassment” is aligned with the NAR Member Code of Conduct. That document defines “harassment” as follows:

Prohibited harassment may take various forms, including, but not limited to, the following examples:

• Verbal conduct, such as epithets, derogatory comments, slurs, or jokes, or unwanted sexual advances, solicitations, or comments.

• Visual conduct, such as derogatory or sexually oriented posters, cartoons, drawings, or gestures.

• Physical conduct, such as assault, impeding, or blocking movement.

• Via technology or computers, including to transmit, communicate or receive derogatory, inappropriate pornographic, sexually suggestive, or explicit pictures, cartoons, messages, jokes, or material.

• Threats and demands.

• Requests for sexual favors, such as unwanted sexual advances, which condition a benefit upon an exchange of sexual favors.

• Violence or threats of violence.

Harassment includes inappropriate conduct, comment, display, action, or gesture based on another person’s sex, color, race, religion, national origin, age, disability, sexual orientation, gender identity, and any other protected characteristic.

Examples of harassment include, but are not limited to: epithets, slurs or negative stereotyping; threatening, intimidating or hostile acts; denigrating jokes; and the display or circulation of written or graphic material that denigrates or shows hostility toward an individual or group based on a protected characteristic. [Emphasis added]

Since the NAR Member Code of Conduct was passed in June of 2024, as a result of the Kenny Parcells sexual harassment saga, it is understandably focused on sexual harassment. It seems like a poor fit for what 10-5 and Article 10 are trying to do, but whatever. That’s the definition we have now.

Changing 10-5 Is Not Enough

As welcome as these changes are, they are not enough. Peace is not the absence of violence, but the presence of justice. Removing the Speech Code is a step forward, but that alone ain’t gonna get it done.

NAR should—and if peace within the REALTOR ranks is an important goal of the leadership, NAR must—take additional steps.

Public Apology

Given this new language, and this new definition of “harassment,” it is now clear as day that the REALTORS who were persecuted under 10-5 are completely innocent. I have detailed the “crimes” of Brandon Huber, Wilson Fauber, Chad DeVries, and Jamie Haynes, so I won’t repeat them here, except to say that posting a Bible verse, sending a polite letter withdrawing from a lunch program, sharing joke memes on a personal Instagram account, and speaking as a parent at a school board meeting do not in any way meet any definition of “harassment.”

And none of these individuals were accused of doing so in a real estate context, in a professional capacity.

NAR acknowledges as much with its changes to 10-5. NAR should therefore issue a public apology to at least those four individuals we know about, as well as to the thousands of conservative and Christian REALTORS we do not know about.

The absolute minimum required is an apology.

Compensation

Further, NAR should make recompense to each of the four individuals we know about.

Immediate revocation and nullification of any penalties they received under the old 10-5 and restoration of their REALTOR membership is a given, of course. Their records must be wiped clean of the stain of being accused of hate speech.

In addition, their monetary losses must be made whole. We know that Brandon Huber and Wilson Fauber have had their real estate careers ruined. We know that Jamie Haynes left the industry entirely. While Chad DeVries is a top producer, I imagine his business also suffered as a result of the persecution.

Further, all of them ended up having to hire attorneys, expend resources, and go through hell in order to defend their free speech and religious freedom rights.

All of that is before we consider the pain, suffering, humiliation and damage to their reputations.

All of them must be made whole. We’re not talking tens of millions of dollars here. NAR spends millions on interior design of its HQ. Make these victims whole.

Accountability

Finally, NAR should hold those individuals who weaponized 10-5 to go after these entirely innocent REALTORS accountable.

In two cases that we know of—Wilson Fauber and Chad DeVries—their troubles began after they ran for public office. The entire 10-5 accusation was a politically motivated character assassination play, but one that did not end after they lost the elections.

As all of us are learning in real time from watching LA burn, activists do not change their behaviors until they face consequences. Merely preventing them from doing harm is not enough; they must be held accountable for harm they caused.

Those who filed the ridiculous 10-5 ethics claims should face their own ethics charges under the new 10-5 which prohibits harassment in a professional capacity based on religion. They certainly engaged in harassment of Christians in a professional capacity, in a real estate context. Religion is a protected characteristic. That harassment absolutely had both the purpose and the effect of creating a hostile, abusive and intimidating environment. That harassment did in fact adversely affect the ability of Christian REALTORS to access employment opportunities both by denying them access to the MLS and by ruining their reputations in their communities.

Even if we grant that NAR meant well and had good intentions when it passed the original 10-5 Speech Code, we can agree that such good intentions did not extend to allowing activists to weaponize it against fellow REALTORS for political purposes. If anything, the people who meant well by passing 10-5 ought to be royally pissed that political operatives took advantage of their kindness and naïveté. Which means that those who did so intentionally, on purpose, for invidious reasons, need to be held accountable.

There Will Be Lawsuits; Get Out of the Way

I am not a lawyer (though I trained as one) and I am certainly not the lawyer for any of these individuals, but I can see numerous causes of action for damages by all four of them. We already know that Chad DeVries has filed one, which is making its way through the legal system.

The temptation to fight those lawsuits will be strong; no one likes getting sued and everyone wants to mount a defense. I get it.

But NAR (and its state and local affiliates) should recognize in the aftermath of changing 10-5 that the better way is to simply avoid a lawsuit altogether by (1) apologizing, and (2) making recompense for damages.

It is, I recognize, a bit too much to expect that local and state Associations will bring charges themselves against the activists who weaponized 10-5 against conservatives and Christians. Leave that to the victims here. Let them bring charges, and adjudicate those fairly, without open hostility to their claims as we saw in Arizona.

What NAR and the state and local Associations can do, and should do, is relieve the people who went along with the activist charade of their duties on Grievance and Professional Standards Committees. Those people were either in cahoots with the activists, or displayed such lack of wisdom and judgment that they do not belong on committees doing ethics hearings. Either way, they must be removed.

Do those things, and I believe that the institutions and organizations avoid getting sued at all. It is far better to spend some time and money up front making things right than having to spend millions on legal fees, go through discovery, waste time in depositions and the like, and then having to make things right.

Restore the Community

More importantly, I believe NAR and its leadership truly need to recognize that we live in completely divided times. Their job is not to further the division, but to create as much unity as possible.

Perhaps it is impossible for NAR to bring together LGBTQ activists and Christian ministers. That’s fine, because socio-political harmony is not NAR’s role or purpose. But what NAR can and should do is to create what unity is possible: fair and just provision of real estate services.

And as a trade association, founded on the idea of mutual respect between members, NAR can go a long way towards restoring that community by making things right with the victims, then enforcing mutual respect in a real estate context.

“Y’all don’t have to like each other or get along outside of real estate, but within real estate, as long as you are REALTORS, you will respect each other.”

There is no rational resistance to that stance, and those who do resist it… ought to go their own way. That applies both to lefty activists as it does to far right activists. If some Christian REALTOR refuses to work with a gay REALTOR, or a Muslim REALTOR, bring them up on charges and boot them out. I will be first in line to applaud the decision, and I suspect Wilson and Brandon and Chad and Jamie will be second in line.

Create and enforce a community in a real estate context, and NAR will have achieved all that could be expected of them. Which is valuable in this extraordinarily divided time we live in.

Moving Ahead

It is important that we move ahead. We have to put this ugly chapter of NAR history behind us. But people can’t move ahead, people can’t put things behind them, if things are not made right and the abusers held accountable.

Apologize, make things right, and hold those responsible accountable, NAR. Then and only then can conservatives and Christians feel welcome. Then and only then can we move forward.

Peace is not merely the absence of tension; it is the presence of justice.