HUD’s Office of Community Planning and Development (CPD) issued Notice CPD-15-02 on February 20, providing guidance on how best to provide shelter for transgender people in single-sex facilities receiving funds from the Emergency Solutions Grant, Continuum of Care, and Housing Opportunities for Persons with AIDS programs. HUD’s Office of Housing issued Notice H 2015-01 on February 6 to increase awareness of the requirements of the Equal Access Rule; it does not offer new guidance.
On February 3, 2012, HUD published a final rule entitled “Equal Access to Housing in HUD Programs regardless of Sexual Orientation or Gender Identity” (see Memo, 2/3/12). The rule explicitly states that eligibility determinations for HUD-assisted or -insured housing must be made without regard to actual or perceived sexual orientation, gender identity, or marital status. This prohibition applies to owners or administrators of HUD-assisted or HUD-insured housing, lenders in an FHA mortgage insurance program, and any other recipient or subrecipient of HUD funds.
The regulation prohibits inquiring about sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available. Individuals, however, may voluntarily self-identify sexual orientation or gender identity. Inquiries about an applicant’s or occupant’s sex is allowed for the limited purpose of determining placement in temporary, emergency shelters with shared bedrooms or bathrooms, or for determining the number of bedrooms to which a household may be entitled.
Notice CPD-2015-01 refers to the Equal Access Rule, but that rule did not mandate a national policy regarding placement of transgender people in single-sex shelters. After evaluating the practices of HUD recipients, reviewing research, and hearing from clients and providers, HUD decided to issue the guidance in the Notice. HUD “assumes” that a provider that makes decisions about eligibility for or placement in single-sex emergency shelters or other facilities will place a potential client in a shelter or facility that corresponds to the gender with which the person identifies. In addition, HUD “assumes” that a provider will not make an assignment or reassignment based on complaints of another person when the sole basis of the complaint is a client’s non-conformance with gender stereotypes.
The Equal Access Rule allows providers to ask a potential client about their sex in situations of emergency shelters with shared sleeping areas or bathrooms. If a provider is uncertain about a person’s sex or gender identity, the Notice states that best practices suggest that the provider inform the client that the agency provides shelter based on the gender with which the individual identifies. There is no legitimate reason for a provider to request documentation of a person’s sex in order to determine appropriate placement. A provider may not consider someone ineligible for emergency shelter or other facility because the person does not conform to gender stereotypes. If a client expresses safety or privacy concerns, the provider must take reasonable steps to address those concerns. Examples of reasonable steps include adding a privacy partition, creating access to a nearby private restroom, or offering a separate changing schedule.
Notice CPD-15-02 is at http://portal.hud.gov/hudportal/documents/huddoc?id=15-02cpdn.pdf
Notice H 2015-01 is at http://portal.hud.gov/hudportal/documents/huddoc?id=15-01hsgn.pdf
The Equal Access Rule is at http://www.gpo.gov/fdsys/pkg/FR-2012-02-03/pdf/2012-2343.pdf