The U.S. Department of Housing and Urban Development has announced a proposed rule that would potentially allow single-sex shelters to turn away transgender individuals based on their biological sex at birth.
The proposal, announced by HUD Secretary Ben Carson on Wednesday, would revise the 2016 Equal Access rule, which prohibits discrimination based on sexual orientation and gender identity in the provision of HUD-funded housing services.
Under the revised rule, shelter providers who operate as single-sex or sex-segregated facilities to establish a policy for determining whether to house or turn away transgender individuals whose assigned sex at birth doesn’t match their gender identity.
Each shelter’s policy must comply with state and local law, and must not discriminate solely based on sexual orientation or transgender status.
However, the policy may be based on biological sex at birth, the gender marker on official government IDs, or self-identified gender identity, as required by the Obama-era version of the rule. Once a shelter chooses particular criteria for determining admission to a shelter, it must apply that criteria consistently to all potential residents.
HUD claims that the revised rule grants more leeway and freedom to shelter providers with sincerely-held religious beliefs about gender, homosexuality, or transgenderism.
“This important update will empower shelter providers to set policies that align with their missions, like safeguarding victims of domestic violence or human trafficking,” Carson said in a statement. “Mission-focused shelter operators play a vital and compassionate role in communities across America. The Federal Government should empower them, not mandate a single approach that overrides local law and concerns. HUD also wants to encourage their participation in HUD programs. That’s exactly what we are doing with this rule change.”
Under the proposed rule, single-sex shelters must provide those they turn away with information about other shelters in the area that will house them. Shelters that do admit transgender people must also be willing to provide additional accommodations or referrals to shelters with policies based on biological sex at birth to any cisgender people who are uncomfortable sharing close spaces or facilities with transgender individuals.
According to a 2016 study conducted by the Center for American Progress and the Equal Rights Center via telephone tests, only 30% of shelters were willing to appropriately house transgender individuals, and close to 20% outright refused to admit transgender residents.
Social conservatives often justify biologically-based rules for shelters by claiming that transgender individuals pose a threat to cisgender individuals, particularly women, or raise concerns that their presence in a shelter may “trigger” victims of rape or domestic violence.
The revised rule has not yet been implemented, nor has it been published in the Federal Register, which will start a 30-day or 60-day clock, depending on the extent of the rule, for when it will go into effect. But LGBTQ advocates are already decrying the rule as harmful to transgender people, and are threatening to take legal action against the Trump administration to block it.
“Every American should have access to safe shelter free of discrimination,” Sharita Gruberg, the senior director for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement. “The protections of the Fair Housing Act and the Equal Access Rule are more important now than ever.
“The government’s enforcement should be aligned with the U.S. Supreme Court’s recent decision that sex discrimination includes sexual orientation and gender identity. Instead, the Trump administration is targeting transgender people for discrimination. Giving shelters a license to discriminate against transgender people would be wrong at any time, but to do so in the midst of a pandemic and an economic crisis constitutes an act of wanton cruelty,” Gruberg added.
Several other civil rights and LGBTQ groups issued a joint statement condemning the proposed rule.
“As it is, one in three transgender Americans has been homeless at some point in their lives, and this proposal would have them sleep on the street rather than get help,” the joint statement reads. “The difference between being sheltered and unsheltered is especially dangerous for transgender homeless persons, particularly transgender persons of color, who face harassment and threats from private individuals, as well as elevated rates of policing and violence within police custody.
“When combined with President Trump’s recent policy proposals to increase criminalization of homelessness, while cutting HUD’s affordable housing budget and rolling back support for Housing First, it is clear that getting transgender persons off the street and out of harm’s way is a matter of life and death.”
“This proposed rule is the latest salvo in the Trump administration’s cruel, ongoing attack on LGBTQ rights,” Vanita Gupta, the president and CEO of The Leadership Conference on Civil and Human Rights, said in a statement.
“Federal courts have consistently found that gender identity and sexual orientation are covered under the Fair Housing Act, and Secretary Carson has an obligation to uphold the law. Everyone, regardless of sexual orientation or gender identity, has a right to safe housing,” Gupta continued. “Shelters, particularly those receiving taxpayer funds, should not engage in government sanctioned discrimination against LGBTQ people during their time of need.”
“This proposal is yet another attack from the Trump administration at the safety of the most vulnerable members of our community. It flies in the face of the Bostock Supreme Court ruling, so it will not stand, but it could still put people in danger,” Mara Keisling, the executive director of the National Center for Transgender Equality, added.
“Discrimination and criminalization have left countless transgender people, particularly transgender people of color, exposed to violence and abuse, all while family rejection can leave transgender youth with nowhere to turn. Secretary Carson is contradicting the very mission of his department by trying to make shelters less safe for those who need them and further endangering the lives of marginalized people.”
“In the face of the COVID-19 pandemic and rising levels of unsheltered homelessness, it is unconscionable that the Administration would allow publicly-funded shelters to deny access to life-saving assistance to people who need it most,” Nan Roman, the president and CEO of the National Alliance to End Homelessness, said in a statement.
“Our nation cannot protect its citizens and residents or end homelessness if federal agencies allow nonprofit shelters to refuse to use public funds to help people in need simply because of their gender identities.”
LaLa Zannell, the manager of the American Civil Liberties Union’s Trans Justice Campaign, condemned the new rule.
“In the midst of the highest unemployment rates our country has seen in decades, Trump is proposing a rule that would allow federally funded homeless shelters to turn people away based on sex. This new rule would be particularly dangerous for the Black and Brown transgender women who face extraordinarily high rates of unemployment and homelessness at any time, and particularly in this economic crisis,” Zannell said.
“Housing Secretary Ben Carson: Where should the Black and Brown trans women who have faced discrimination at work and violence in their homes and the streets go after we have been turned away from shelters? Shelters funded by taxpayers should be open to all — period. We should all tell the Trump administration that this proposed rule is not only wrong but deadly.”
Christina Wilson Remlin, lead counsel at Children’s Rights, issued a statement noting that the rule could be especially disastrous for transgender and gender-nonconforming youth of color, many who have become homeless because their parents kick them out for their sexual orientation or gender identity.
“Giving federally-funded shelters a greenlight to discriminate against transgender and gender non-conforming (TGNC) youth is a deeply cruel policy that will impact TGNC youth and children with TGNC parents in particular. Young TGNC people, especially TGNC youth of color, have been disproportionately affected by the COVID-19 health crisis and subsequent economic downturn, and are increasingly vulnerable to homelessness, especially our TGNC clients in foster care,” Wilson Remlin said. “This proposal is just the latest salvo in the Trump administration’s methodical attempt to dismantle existing protections for LGBTQ+ people. Taxpayer-funded discrimination has no place in our government, and we urge the public to oppose the implementation of this new housing rule.”
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