The U.S. Department of Housing and Urban Development’s (HUD) regulatory agenda this fall includes a new rule which says shelters that receive, manage, or operate HUD grants can essentially ignore nondiscrimination protections for unhoused trans people. But legal experts say that it is unconstitutional and likely to be challenged.
An analysis published this week from the Center for American Progress also finds no evidence of any demand for this rule from shelters, and that HUD has taken strong steps to “formalize LGBTQ-exclusionary practices” for shelter providers in other ways. In May, one day after HUD Secretary Ben Carson told Rep. Jennifer Wexton that he wasn’t “currently anticipating” changing the Equal Access rule, HUD released its plans to scrap housing protections for trans people. (ThinkProgress is an editorially independent newsroom operating within the Center for American Progress.)
Sasha Buchert, a senior attorney with Lambda Legal, an organization dedicated to advancing the civil rights of LGBTQ people and people living with HIV, said it’s possible that Lambda Legal and other civil rights organizations would file a lawsuit challenging the rule.
“This is patently unconstitutional and discriminatory on its face, and it would shock me if we did not bring a lawsuit,” Buchert said.
The rule would also put trans people in the impossible situation of having to choose whether to stay in a space within a shelter that is inconsistent with their gender, or not stay in a shelter at all. The 2015 U.S. Transgender Survey found that nearly one in three trans respondents said they had experienced homelessness.
“This would be absolutely devastating in the sense that it would send a message to shelter providers that they can turn away trans people with impunity. They’re wrong. The law is the law and the federal housing Title VIII [of The Civil Rights Act] prohibits discrimination based on sex and that would encompass gender identity. They’re still going to be liable,” she said.
“Forcing [trans people] into this impossible choice to sleep out on the street or go stay in a facility inconsistent with their gender identity is extremely harmful and there’s no evidence that there has been any concerns with implementation of that across the board, across the U.S. All that has happened is that trans people specifically have been able to find safe shelter,” Buchert added.
A notice of the proposed rule change says those shelters permitting single-sex or sex-segregated facilities can “establish a policy by which such Shelter Provider considers an individual’s sex for the purposes of determining accommodation within such shelters and for purposes of determining sex for admission to any facility or portion thereof.”
The shelters can consider a range of factors, HUD explains, “including privacy, safety, practical concerns, religious beliefs, any relevant considerations under civil rights and nondiscrimination authorities.”
HUD said sex can be reflected in government documents as well as the gender the person identifies with, but it “does not dictate a required basis for making determinations other than that they be consistent with an overall policy.” In effect, this means HUD is trying to take the strong protections established in 2012 and 2016 and undermine them into unenforceable guidance that will leave many vulnerable trans people on the street. Shelter providers can simply claim that their policies are consistent with local and state law and the shelter provider’s overall policy.
In 2012, HUD implemented a final rule, referred to as the Equal Access rule, “to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.” In 2016, HUD issued a subsequent rule that clarified that sex-segregated shelters receiving funding must also adhere to the equal access rule.
Buchert said that these requirements on proving one’s gender simply don’t adhere to how nondiscrimination protections are actually understood under the law. She asked, for instance, whether someone seeking shelter would have to prove how often they attended church, in order to prove someone is protected by religious nondiscrimination laws.
“They say others can define sex in whatever way they want to by basically looking at a number of different factors and just look to birth certificates, government documents, whether they identify as, and existing state law and privacy issues — just this whole, basically, balancing test of some kind. It’s completely inconsistent with the way the law understands gender identity,” Buchert said.
“When people are discriminated against they should be looking at the decision-making process of the person doing the discriminating,” she continued. “It shouldn’t even matter whether the person is actually transgender. If someone sees someone as transgender and discriminates against them, it’s the ill intent of the person doing the discriminating that is at fault here. That kind of analysis doesn’t apply in regard to how agencies enforce the law.”
Other than political motivations, it isn’t clear what has motivated HUD to act on this issue.
According to a Center for American Progress column on the proposed rule, HUD has moved forward with this rulemaking despite a lack of outcry from shelters about the implementation of the 2012 rule and the 2016 clarification:
There is no significant evidence that emergency shelters have petitioned the federal government for the kind of changes that HUD is considering. For example, HUD’s response to a May 31, 2017, Freedom of Information Act (FOIA) request from the Center for American Progress for information regarding waivers or religious accommodations made under the 2012 and 2016 Equal Access rules from their date of publication to May 31, 2017, failed to locate any waiver requests from service providers. It also turned up no records of complaints from service providers pertaining to the rules under both the Obama and Trump administrations. This indicates that no religious exemptions had been requested under either administration.
The column also highlights how HUD has attempted to undermine the Equal Access rule by removing points awarded to applicants for partnering with LGBTQ-serving organizations and for applicants that decided to do trainings on implementing the 2012 and 2016 rules.
HUD also removed any mention of LGBTQ People from its 2019 Continuum of Care Program Notice and Funding Availability. In that notice, it failed to include the 2016 Equal Access Rule in its list of required nondiscrimination policies.