HUD announced this month that it will propose a rule change that allows local shelter providers to discriminate against homeless transgender persons. If the rule is implemented, transgender persons who are homeless could be turned away from shelters because of their gender identity.
The Trump administration originally announced this rule change last year, but did not act to publish it until now.
HUD’s current Equal Access rule was originally drafted under the Obama administration in 2012, and strengthened in 2016. It requires shelter providers who receive federal funds to be in compliance with the Fair Housing Act. The 2012 rule states that the Fair Housing Act’s protection against housing discrimination on the basis of sex also applies to sexual orientation and gender identity. The 2016 update clarified that Equal Access protections also apply to transgender persons.
For transgender persons, Equal Access means that they are not denied shelter because of their gender identity. Also, transgender persons using homeless shelters have the right to use sleeping quarters and bathroom facilities appropriate for their gender identity.
HUD’s proposal argues that decisions about shelter access are best made at the local level instead of one approach for the whole country. The proposed rule applies to shelter providers running single-sex and sex-segregated facilities. The rule will allow shelters to voluntarily establish an admission policy for cases when a person’s gender identity does not match their biological sex.
The proposed rule says the admissions policy must be consistent with federal, state, and local laws. The policy also must not discriminate on the basis of sexual orientation or sexual identity. Policies can consider several factors, including privacy, safety, religious beliefs and other concerns. If a homeless transgender person is not able to get a bed under a shelter’s admission policy, the shelter must provide a referral to another site that will serve transgender residents.
HUD gives several reasons for making these changes to the Equal Access rule. HUD claims that the old rule minimized local control. HUD also claims that the old rule burdens shelters that have deeply held religious convictions. Many homeless shelters are run by charitable religious organizations. Some large religious organizations support homeless shelters around the country, such as the Salvation Army or Catholic Charities.
HUD also expresses concern over the mental health and safety impacts on vulnerable populations if they have to share shelter space with transgender persons. HUD singles out victims of domestic violence and human trafficking as groups that may be uncomfortable sharing space with transgender clients.
HUD Secretary Ben Carson mentioned these concerns as the reason for the rule change. He said in HUD’s press release that, “This important update will empower shelter providers to set policies that align with their missions, like safeguarding victims of domestic violence or human trafficking. 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.”
If implemented, this rule would leave homeless transgender persons in a terrible spot. Many homeless shelters are run by charitable religious organizations, who are more likely to have restrictive admissions policies because of their beliefs. In smaller, rural communities there may not be many other shelters for referrals.
According to a study by the Center for American Progress and The Equal Rights Center, many shelters are likely to turn away homeless transgender persons if the rule goes into effect. The study gathered information from shelter providers in four states: Connecticut, Tennessee, Virginia, and Washington. Only 30% of shelters in these states were willing to house transgender persons with women, and 21% would not admit transgender clients at all.
Transgender persons are especially vulnerable to homelessness. According to the National Center for Transgender Equality, one in three transgender people will experience homelessness at some point in their lives.
Transgender persons experiencing homelessness also face tremendous rates of harassment and violence. 70% of transgender persons trying to access shelter faced discrimination. More than half using shelters experienced harassment, One quarter of transgender persons in shelters reported being physically assaulted, and 22% were sexually assaulted.
In many communities, the only referrals available for transgender clients would be for men’s shelters. Given these rates of harassment and violence, that is not a real option. Many transgender women end up choosing to stay outdoors rather than risk harm in a men’s shelter.
The timing of HUD’s move to publish the proposed rule is odd. Less than two weeks ago the Supreme Court ruled that current civil rights law protects gay and transgender people from discrimination in the workplace. This means that transgender persons are also covered by other civil rights laws that bar discrimination on the basis of sex, including the Fair Housing Act.
In light of the Supreme Court’s decision, members of Congress have urged HUD to reconsider the proposed rule. Representative Jennifer Wexton (D-CA) and Chairwoman of the House Financial Services Committee Maxine Waters (D-CA) sent a letter to HUD Secretary Ben Carson. They asked HUD to reconsider publishing the rule because it contradicts the Supreme Court’s recent decision on transgender workplace rights.
There is a 60-day comment period before HUD can implement the new rule. Affordable housing and fair housing advocates are organizing to oppose the rule. The National Low-Income Housing Coalition is working with several other national affordable housing, civil rights and LGBTQ advocacy groups to help people submit public comments when the rule is published in the Federal Register. If you want to submit comments in opposition to the proposed rule, you can find more information, letter templates and other materials at the Housing Saves Lives campaign website.