HUD published a final rule that requires housing, facilities, and services funded through programs administered by the Office of Community Planning and Development (CPD) to establish, amend, or maintain program admissions, occupancy, and operating policies and procedures in a manner to ensure equal access to programs, benefits, services, and accommodation for individuals based on their gender identity without intrusive questioning or being asked to provide documentation.
CPD currently administers the following programs: Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), Emergency Solutions Grants (ESG), Continuum of Care (CoC), Housing Opportunities for Persons with AIDS (HOPWA), national Housing Trust Fund (HTF), and Rural Housing Stability Assistance.
The rule builds upon HUD’s February 2012 final Equal Access Rule (see Memo, 2/3/12) which defined the terms “sexual orientation” and “gender identity” and required that HUD-assisted housing, including all housing funded by CPD and housing insured by FHA, be made available to individuals and families without regard to actual or perceived sexual orientation, gender identity, or marital status. The 2012 Equal Access Rule also generally prohibited inquiries into sexual orientation or gender identity for the purpose of determining eligibility for, or availability of, such housing. HUD’s Office of Public and Indian Housing issued guidance through Notice PIH 2014-20 on August 20, 2014 (see Memo, 7/20/15), and the Office of Multifamily Housing Programs issued guidance through Notice H 2015-06 on July 13, 2015 (see Memo, 9/2/14).
The 2012 Equal Access Rule provided a limited exception in cases involving single-sex emergency shelters with shared sleeping areas or bathrooms. At the time, HUD did not adopt a national policy on the placement of transgender and gender nonconforming persons in temporary, emergency shelters with shared sleeping quarters or shared bathing facilities. Instead, HUD wanted to conduct research and monitor its programs to determine whether additional guidance or national policy was needed to ensure equal access for transgender and gender nonconforming persons. In the meantime, CPD issued Notice CPD-15-02 on February 20, 2015 providing guidance on how best to provide shelter for transgender people in single-sex facilities receiving funds from ESG, CoC, and HOPWA (see Memo, 3/22/15). The CPD Notice clarified that HUD expected recipients and subrecipients under these programs to base placement decisions on the gender with which a person identifies.
As a result of its review, HUD concluded that the 2012 Equal Access Rule did not adequately address the significant barriers faced by transgender and gender nonconforming persons. Therefore, on November 20, 2015, HUD issued a proposed rule to address those barriers (see Memo, 12/7/15). In response to public comment, the final rule made a number of changes to 24 CFR Part 5.
The final rule modifies the definition of “perceived gender identity” at Section 5.100 by adding “identification in documents” to the proposed definition, so that “Perceived gender identity means the gender with which a person is perceived to identify based on that person’s appearance, behavior, expression, other gender related characteristics, or sex assigned to the individual at birth, or identified in documents.” The preamble to the final rule explains that transgender persons often encounter difficulty obtaining accommodations that accords with their gender identity because identification documents often indicate an individual’s sex at birth instead of an individual’s gender identity.
Section 5.105(a)(2)(ii) of the 2012 Equal Access Rule prohibited inquiries about an individual’s sexual orientation or gender identity. However, Notice CPD-15-02 allowed such inquiries so that a provider could determine the most appropriate placement for someone seeking housing. HUD later concluded that providers might not make the inquiries allowed by Notice CPD-15-02 out of concern for violating the 2012 Equal Access Rule. Therefore the proposed rule sought to eliminate the prohibition on inquiries related to sexual orientation or gender identity. As explained in the preamble to the proposed rule, eliminating the prohibition allows shelters and other facilities with physical limitations or configurations that require shared sleeping quarters or shared bathing facilities to ask an individual’s gender identity. The final rule no longer has language prohibiting inquiries related to sexual orientation or gender identity.
Section 5.106(b) addresses admissions, occupancy, and operating policies and procedures. The final rule adds a provision that policies and procedures must ensure that individuals are not subjected to intrusive questioning or asked to provide anatomical information or documentary, physical, or medical evidence of the individual’s gender identity.
The proposed rule at Section 5.106(c) would allow alternative accommodation for a transgender individual if necessary to ensure health and safety. However, public comments expressed concern that this exception could be inappropriately used by facility staff or other occupants to assert that transgender individuals could be the cause for health and safety concerns. Therefore, the final rule removes the exception. The final rule also removes the proposed rule’s Section 5.106(d) which would have required equivalent alternative accommodations or referrals to comparable alternatives that meet the needs of a transgender person requiring alternatives in order to ensure their health and safety as would have been allowed under the now deleted Section 5.106(c).
The final rule is at http://bit.ly/2da5GEh
HUD’s LGBT Homeless webpage has additional information of individuals and service providers at http://bit.ly/2dfcqRR