HUD Withdraws Equal Access Rule, April 27, 2021
HUD withdrew the previous administration’s anti-transgender proposed changes to the Equal Access Rule. This action reaffirms HUD’s mission and commitment to creating inclusive communities and sends a signal that the agency will not engage in federally funded discrimination. The previous administration’s proposed changes would have weakened protections for transgender individuals experiencing homelessness and seeking shelter, and it would allow shelter providers to deny admission or access to services consistent with an individual’s gender identity. The withdrawal reaffirms HUD’s mission and commitment to creating inclusive communities and sends a signal that the agency will not engage in federally funded discrimination.
This decision restores most guidance and technical assistance from the 2016 Equal Access Rule to Community Planning and Development (CPD) funded emergency shelters, temporary housing, buildings, housing, and other programs that were designed to ensure they comply with the rule. In addition, HUD is releasing resources prepared by technical assistance providers to HUD grantees. More guidance and technical assistance will be provided once a review of recent regulations and laws are completed.
HUD to Begin Implementation of Executive Order to Prevent and Combat Sexual Orientation and Gender Identity-Based Discrimination, February 11, 2021
HUD under the new Biden Administration announced on February 11, 2021 that it will administer and enforce a fair housing provision that prohibits discrimination on the basis of sexual orientation and gender identity. A Memorandum from February 4, 2021 stated that HUD will begin implementing the policy set in forth in Executive Order 138988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. HUD is the first agency to release directives regarding the president’s day-one Executive Order.
The memorandum affirms that the decision made in U.S. Supreme Court’s landmark ruling in Bostock v. Clayton, County, Georgia, applies to the Fair Housing Act. The ruling, made on June 15, 2020, held that Title VII of the Civil Rights Act bars discrimination based on gender identity and sexual orientation. The memorandum states that HUD will act according to the Bostock decision, the policy in President’s Biden’s Executive Order, and the Fair Housing Act, to address housing discrimination against LGBTQ individuals. The memorandum specifically states:
“The memorandum relies on the Department’s legal conclusion that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace. In Bostock v Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity. HUD has now determined that the Fair Housing Act's prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity. Accordingly, and consistent with President Biden's Executive Order, HUD will enforce the Fair Housing Act to prevent and combat such discrimination.”
The memorandum also directs HUD’s Office of Fair Housing and Equal Opportunity and HUD-funded fair housing partners as follows:
- HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds such discrimination occurred.
- HUD will conduct all activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation and gender identity.
- State and local jurisdictions funded by HUD’s Fair Housing Assistance Program (FHAP) that enforce the Fair Housing Act through their HUD-certified substantially equivalent laws will be required to administer those laws to prohibit discrimination because of gender identity and sexual orientation.
- Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program (FHIP) must carry out their funded activities to also prevent and combat discrimination because of sexual orientation and gender identity.
- FHEO Regional Offices, FHAP agencies, and FHIP grantees are instructed to review, within 30 days, all records of allegations (inquiries, complaints, phone logs, etc.) received since January 20, 2020, and notify persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional for filing under this memorandum.
While the memorandum notes no specific actions to address the previous administration’s proposed anti-transgender changes to the Equal Access Rule, representatives from the White House and HUD assured stakeholders in a briefing call that updates are forthcoming. They reaffirmed a commitment to ensuring LGBTQ individuals receive full protection from housing discrimination. It is important to note that previous administration’s anti-transgender changes to the Equal Access Rule were never finalized and never went into effect.
The memorandum also extends to all housing covered by the Fair Housing Act and is therefore a broader application than the Equal Access Rule.
President Biden Signs Executive Order Implementing Supreme Court Ruling Protecting Transgender Americans, January 20, 2021
On his first day in office, January 20, 2021, President Joe Biden signed Executive Order (EO) 13988 directing the federal government to fully implement the U.S. Supreme Court’s landmark ruling in Bostock v. Clayton County, Georgia. The ruling, issued on June 15, 2020, held that Title VII of the Civil Rights Act bars discrimination based on gender identity and sexual orientation. The EO reinforces laws that prohibit sex discrimination, including the Fair Housing Act, which prohibits discrimination on the basis of gender identity or sexual orientation.
The Executive Order states the following:
“Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
The EO repudiates the anti-transgender rhetoric that was commonplace in the previous administration and is contrary to former HUD Secretary Ben Carson’s interpretation of the ruling.
HUD Publishes Proposed Anti-Transgender Rule in the Federal Register, July 24, 2020
HUD under the Trump Administration published proposed anti-transgender changes to the 2016 “Gender Identity” addition to the 2012 Equal Access Rule in the Federal Register on July 24, 2020. The proposed rule change would weaken protections for transgender individuals experiencing homelessness and seeking emergency shelter, allowing shelter providers to deny admission or access to services consistent with an individual’s gender identity. The proposed rule entered a 60-day public comment period ending on September 22, after which HUD is required to consider comments before making the rule final.
Features of the Harmful Proposed Changes:
- Revised the definition of gender identity to mean actual or perceived gender-related characteristics (deleting the current rule’s “the gender by which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person’s perceived gender identity”).
- Allowed shelter providers to place and accommodate individuals on the basis of its own policy for determining someone’s sex.
- Allowed shelter providers to deny admission or accommodation to someone by using a range of factors, including the very subjective basis that the provider has a “good faith belief” that an individual is not of the sex that the shelter serves (for example a women’s shelter), an individual’s sex as reflected in official government documents, or the gender to which a person identifies.
- Indicated in the preamble to the proposed rule that it would allow shelter providers to use physical characteristics as “reasonable considerations” to determine a person’s biological sex. This could include a combination of factors such as height, presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics that HUD claims “when considered together, are indicative of a person’s biological sex.”
HUD based its threadbare justification on: anecdotal evidence despite admitting that data is lacking, dangerous stereotypes that imagine many men may falsely claim they are transgender women in order to prey on women in shelters, exaggerated “religious freedom” assertions, and unfounded regulatory burdens on shelters.
HUD’s Justifications for the Anti-Transgender Proposal:
- Claim #1: The “2016 rule restricted single-sex facilities in a way not supported by Congressional enactment.”
What the 2016 rule actually did was allow people to go to a federally funded shelter consistent with their gender identity – a step that is not prohibited by statute.
In fact, the Violence Against Women Act prohibits discrimination on the basis of gender identity in programs (including shelters) that receive federal funds from programs subject to VAWA. VAWA allows sex-segregated shelters to consider a person’s sex but requires grantees to provide comparable services to individuals who cannot be served by sex-specific programming.
- Claim #2: The “2016 Rule minimized local control.”
The 2016 rule established a consistent nationwide policy for HUD and taxpayer-funded shelters. Shelters that do not receive HUD funds are not impacted by the 2016 rule.
- Claim #3: The “2016 Rule burdened those shelters with deeply held religious convictions.”
HUD cited no evidence that the existing rule placed an undue burden on faith-based shelter providers. In fact, the Center for American Progress made a FOIA request in 2017 to HUD regarding any waivers or accommodations made under the 2012 and 2016 provisions of the Equal Access Rule. The agency failed to locate any waiver requests or complaints from service providers indicating that any religious exemptions had been requested in the current or prior administrations. Aside from a single anecdotal account and conjecture about how religious organizations may be discouraged from participating in HUD programs, HUD’s proposal provided no concrete evidence demonstrating that religious providers are unduly burdened by current HUD rules.
In fact, the anecdotal account referenced above involved a single shelter that had sued to stop the application of a local antidiscrimination law on religious grounds; the lawsuit did not even involve the application of the Equal Access Rule itself.
- Claim #4: The “2016 Rule has manifested privacy issues.”
HUD’s proposal relied upon false and negative stereotypes about transgender people (particularly transgender women) and failed to provide any evidence that HUD’s nondiscrimination policy creates widespread privacy or safety concerns. Once again, HUD relied on individual anecdotes without providing data to demonstrate a large-scale issue.
HUD cynically invoked survivors of domestic and sexual violence to attempt to lend credibility to its discriminatory proposal. However, HUD failed to acknowledge the view of domestic and sexual violence advocates, who have repeatedly made their stance clear. In 2016, more than 300 domestic violence and sexual violence organizations across the country signed a National Consensus Statement. These leaders agreed: transgender women being served alongside other women is appropriate and not a safety issue. They updated the letter in 2018. Furthermore, in a statement made on July 2, 2020, the National Task Force to End Sexual and Domestic Violence condemned HUD’s anti-transgender proposal.
More generally, nondiscrimination protections similar to the 2016 addition to the 2012 Equal Access Rule have been adopted in more than 20 states and 300 localities. These protections have helped increase fairness and opportunity for vulnerable people, and research shows these protections have not produced any increase in public safety issues.
HUD’s proposed rule did not take into consideration or provide an analysis of the implications that the landmark Supreme Court ruling in Bostock v. Clayton County, Georgia will have on the application of the rule. Bostock v. County ruled that Title VII of the Civil Rights Act of 1964 bars discrimination in employment based on gender identity and sexual orientation, extending protections to members of the LGBTQ community. The Supreme Court issued its landmark ruling during the time HUD’s anti-transgender rule was sent to the House Financial Services Committee and the Senate Committee on Banking, Housing, and Urban Affairs for a 15-day period. HUD had ample time to consider the Bostock v. County case and preferably rescind its anti-transgender rule altogether. This was a subject of criticism from Members of Congress who voiced their opposition to the Administration’s efforts to remove anti-discrimination laws for the LGBTQ community.
NLIHC prepared a comparison of the texts of the proposed anti-transgender rule changes and the 2016 final rule.
Landmark SCOTUS Ruling Weakens Administration Attempts to Allow Discrimination against LGBTQ People in Shelters, June 15, 2020
The U.S. Supreme Court issued a landmark ruling on June 15, 2020 on the civil rights of LGBTQ people. In a 6-3 vote in Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the court held that Title VII of the Civil Rights Act bars discrimination based on gender identity and sexual orientation. This landmark civil rights ruling protects LGBTQ people from discrimination in employment, extending protections for millions of LGBTQ workers, making it illegal to be fired for simply being LGBTQ. The decision comes as the administration seeks to remove protections for transgender people against discrimination in different arenas. The ruling is a historic victory for the LGBTQ community and sets an important precedent. While the ruling only opens the door to equality in one facet of life, employment, the Court’s interpretation of Title VII may influence lower court decisions on Title VIII/Fair Housing cases dealing with sexual orientation and gender identity discrimination.
Writing for the majority, Justice Neil Gorsuch stated, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Samuel Alito’s dissent indicated that “interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity—is virtually to have far-reaching consequences.” Justice Alito also observed that other federal laws such as the Fair Housing Act ban discrimination “because of sex.”
The majority’s interpretation is consistent with the Equal Access Rule’s 2016 addition of LGBTQ provisions set out to do to ensure protections for transgender people from discrimination in homeless shelters and other HUD-funded services. HUD’s proposed rule change would weaken enforcement mechanisms by allowing shelter providers to determine whether to provide emergency shelter services based on the their perception of a person’s sex assigned at birth. While the employment context of the Supreme Court ruling differs from the housing context of the Equal Access Rule, it still can shape how other sectors should interpret anti-discrimination law, particularly for transgender people.
In compliance with HUD regulations, the proposed rule change was sent to the House Financial Service Committee and the Senate Committee on Banking, Housing, and Urban Affairs for a 15-day period ending on June 26. The proposed rule would then be published in the Federal Register for 60-day comment period.
HUD Withdraws Equal Access in CPD Programs Proposed Information Collection Notice
On March 10, 2017, HUD under the Trump Administration immediately withdrew a September 21, 2016 Federal Register “notice of proposed information collection” regarding its proposal to require posting of a notification about equal access regardless of sexual orientation, gender identity, or marital status at shelters, housing, or facilities receiving funds from programs administered by the Office of Community Planning and Development (CPD). Notices of information collection are required by the Paperwork Reduction Act (PRA) of 1995.
On September 21, 2016, a PRA notice of proposed information collection was published in the Federal Register proposing to require owners and operators of CPD-funded shelters, housing, buildings, and other facilities to post a notification containing HUD-provided text on bulletin boards and in other public places. The intent was to ensure that people seeking placement or accommodation at a CPD-funded facility were aware of HUD’s equal access policy. Notifications would have to be posted only once, but remain visible to people accessing shelters, housing, or facilities.
CPD’s proposed text for the notification was included as an appendix to the September 21 notice. In short it stated that the CPD-assisted facility must:
- Determine eligibility for housing regardless of sexual orientation, gender identity, or marital status, and must not discriminate against someone who does not conform to gender or sex stereotypes.
- Grant equal access consistent with a person’s gender identity, and provide the person’s family with equal access.
- Not ask someone to provide anatomical information or physical or medical evidence of gender identity.
The text also provided contact information for people who thought a program violated any of the requirements.
The March 10 notice states that HUD wants the opportunity to further review the need for this information collection. However, it implies that the proposed notice is not likely to go forward: “HUD will provide for public comment as required by the Paperwork Reduction Act should HUD decide to seek approval from the Office of Management and Budget for this information.” (emphasis added)
Final Equal Access Rule for Native American and Native Hawaiian Programs, November 17, 2016
HUD under the Obama Administration issued a final rule on November 17, 2016 that applies the provisions of the 2012 Equal Access in Housing rule to Native American and Native Hawaiian programs to ensure that all individuals and families have access to those programs regardless of actual or perceived sexual orientation, gender identity, or marital status.
A proposed rule for Native American and Native Hawaiian programs was published on May 9 that would incorporate HUD’s February 3, 2012 Equal Access rule. The Equal Access rule requires HUD-assisted and HUD-insured housing programs to be available regardless of sexual orientation, gender identity, or marital status. In the preamble to the 2012 Equal Access rule, which did not apply to Native American and Native Hawaiian programs, HUD committed to consulting with tribes before applying the Equal Access requirements to the Native American and Native Hawaiian programs. HUD used a “Dear Tribal Leader Letter” to obtain comments.
The final rule adopts the proposed rule with one minor change clarifying that all loans insured by HUD, not only loans insured by the Federal Housing Administration, are subject to the Equal Access provisions. As proposed, the final rule also incorporates the Gender Identity rule issued by HUD’s Office of Community Planning and Development.
The final rule amends regulations for: Native American Housing Activities (24 CFR part 1000), Community Development Block Grants for Indian Tribes and Alaska Native Villages (24 CFR part 1003), Section 184 Indian Home Loan Guarantee Program (24 CFR part 1005), Native Hawaiian Housing Block Grant Program (24 CFR part 1006), and Section 184A Loan Guarantees for Native Hawaiian Housing (24 CFR part 1007).
HUD Issues Final Gender Identity Rule for CPD Programs, September 21, 2016
HUD under the Obama Administration published a final rule on September 21, 2016 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.
The rule built upon HUD’s February 2012 final Equal Access Rule 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.
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.
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.
The final rule modified the definition of “perceived gender identity” 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 explained 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.
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.
The final rule added 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 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 removed the exception. The final rule also removed the proposed rule that 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.
Proposed Rule to Prohibit Sexual Orientation or Gender Identity Discrimination in Native American and Native Hawaiian Programs, May 9, 2016
HUD’s Office of Public and Indian Housing (PIH) published a proposed rule on May 9, 2016 to revise the Native American and Native Hawaiian programs by incorporating an existing fair housing rule, the Equal Access rule published on February 3, 2012 that requires HUD programs to be available regardless of sexual orientation or marital status. The proposed revisions would also incorporate a proposed Gender Identity rule published on November 20, 2015 by HUD’s Office of Community Planning and Development (CPD) that would apply to CPD programs.
HUD did not include the Native American and Native Hawaiian programs in either the final Equal Access rule or the proposed Gender Identity rule so that more tribal consultation could take place. HUD sent letters to tribal leaders on January 28, 2015 seeking comments on the forthcoming proposed rule. Only one tribally designated entity responded, opposing the rule.
If finalized, the proposed rule would apply to the following programs: Native American Housing Activities (24 CFR part 1000), Community Development Block Grants for Indian Tribes and Alaska Native Villages (24 CFR part 1003), Section 184 Indian Home Loan Guarantee Program (24 CFR part 1005), Native Hawaiian Housing Block Grant Program (24 CFR part 1006), and Section 184A Loan Guarantees for Native Hawaiian Housing (24 CFR part 1007).
Proposed Rule Addition to Equal Access Rule, November 20, 2015
HUD Proposed Rule Would Strengthen Protections for Trans People in Emergency Shelters, November 20, 2015
On November 20, 2015 HUD under the Obama Administration released a proposed rule that would allow transgender people or those who do not identify with the sex they were assigned at birth to access HUD-supported programs, benefits, services and accommodations in accordance with their gender identity.
HUD developed the “Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs Rule (Gender Identity Rule)” after the agency reviewed and monitored the implementation of its Equal Access Rule, published in 2012. That rule ensures that housing assisted or insured by HUD is open to all eligible individuals and families without regard to actual or perceived sexual orientation, gender identity, or marital status.
Based on its review of the Equal Access Rule and input from homeless services providers, HUD’s new rule would require recipients and sub-recipients who receive assistance from HUD’s Office of Community Planning and Development, along with owners, operators, and managers of shelters, buildings, and facilities with shared sleeping quarters or shared bathrooms to accommodate transgender individuals according to their gender identity. Homeless service providers reported to HUD that many transgender shelter-seekers would rather sleep on the street rather than staying in a shelter designated for their assigned sex at birth.
The new rule would also eliminate the Equal Access Rule’s prohibition on inquiries related to sexual orientation, or gender identity, but still maintains the prohibition against discriminating on those bases. Prior to this change, there was only a limited exception for inquiring about the sex of an individual to determine the eligibility for housing provided in temporary emergency shelters with shared sleeping areas or bathrooms, or to determine the number of bedrooms a household might need. After reviewing this policy, HUD determined that such a prohibition “may hinder a provider from making an appropriate placement decision for fear of violating the rule.”
In addition, the proposed rule would amend the definition of gender identity to clarify the difference between actual and perceived gender identity. Perceived gender identity may differ from the identity with which a person identifies.
HUD Notice Provides Guidance on Complying with Equal Access Rule for Multifamily Insured and Assisted Housing, July 13, 2015
On July 13, 2015 HUD issued Notice H 2015-06, which provides guidance on how the Equal Access Rule applies to HUD Multifamily insured and assisted housing. The Notice states that HUD or a Contract Administrator may review an owner’s tenant selection plan or other policies and procedures to determine compliance. In addition, the HUD civil rights review conducted at the time of the Management and Occupancy Review may include a review to determine compliance.
CPD Notice Guidance on Providing Shelter to Transgender People, Office of Housing Notice Highlights Equal Access Rule, February 20, 2015
HUD’s Office of Community Planning and Development (CPD) issued Notice CPD-15-02 on February 20, 2015 providing guidance on how best to provide shelter to transgender people in single-sex facilities receiving funds from the Emergency Solutions Grant, Continuum of Care, or Housing Opportunities for Persons with AIDS programs. The Trump Administration deleted this Notice.
The CPD Notice referred 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, hearing from clients and providers, HUD decided to issue the guidance in Notice-15-02. 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 identify, the Notice indicated that best practices suggest 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.
HUD’s Office of Multifamily Housing Programs issued Notice H 2015-01 on February 6, 2015 to increase awareness of the requirements of the Equal Access Rule.
HUD Guidance to PHAs on Equal Access Regardless of Sexual Orientation, August 20, 2014
HUD’s Office of Public and Indian Housing (PIH) issued Notice PIH 2014-20 on August 20, 2014 providing public housing agencies (PHAs) with guidance on how to comply with the Equal Access Rule. That rule requires all of HUD’s assisted and insured housing programs to be open to all eligible individuals regardless of sexual orientation, gender identity, or marital status.
The Notice applies to all PIH programs administered by PHAs, their affiliates, instrumentalities, and mixed-finance owner-entities. The PIH programs covered are Public Housing, Housing Choice Vouchers, Project-Based Vouchers, and Moderate Rehabilitation programs. The Notice applies to PHAs under the Moving to Work demonstration and the Rental Assistance Demonstration, as well as to private owners that participate in housing programs funded under Section 8.
PHAs are required to review and update, if necessary, their public housing Admissions and Continued Occupancy Policy (ACOP) and voucher Administrative Plan to ensure consistency with the Equal Access Rule. In addition, the next Annual PHA Plan had to include a statement in the section on eligibility, selection, and admissions that reflects the changed definition of family and the obligation to provide equal access regardless of sexual orientation, gender identity, or marital status.
The Equal Access Rule allows a PHA to ask an applicant’s or participant’s sex in order to determine the number of bedrooms for which a household may be eligible. In addition, PHAs must collect and report on a program participant’s sex through form HUD-50008. PHAs may maintain voluntary and anonymous reporting of sexual orientation or gender identity for compliance with data collection requirements by state and local governments or other federal assistance programs.
First Enforcement Action of New LGBT Equal Access Regulation, January 2, 2013
On January 2, 2013 HUD announced the first enforcement action taken against a lender involving this rule. A lesbian couple were denied an FHA-insured loan at a Bank of America location in Indialantic, Florida based on their marital status and/or sexual orientation. Because one partner was not employed, her mother was a co-applicant on the loan. The bank assured the couple that they were likely to receive a mortgage. However, one day before loan closing, the bank denied the mortgage because it did not consider the loan applicant and co-applicant directly related because the applicant and her partner were not married.
A settlement agreement between HUD and the bank called for the bank to:
- Notify its mortgage originators, processors, and underwriters of the settlement, including a link to the Equal Access regulations.
- Remind applicable employees that they are prohibited from discriminating against applicants of FHA-insured loans on the basis of sexual orientation, gender identity, or marital status.
- Update its existing fair lending training program to include information on the Equal Access regulations.
HUD’s Final Equal Access Rule, February 3, 2012
The final Equal Access 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.
The rule defines “family,” without regard to actual or perceived sexual orientation, gender identity, or marital status, to include single persons or groups of persons residing together, including those who are elderly, disabled, and with or without children.
Proposed Equal Access Rule
HUD’s Proposed Equal Access Rule, January 24, 2011
NLIHC Signs on to Comments on Proposed Rule Prohibiting Asking About Sexual Orientation or Gender Identity, March 25, 2011
NLIHC participated with members of the Housing Justice Network, an informal network of legal services and affordable housing advocates, in writing a joint response. The March 25, 2011 letter stated that the proposed regulations would be important an element in countering discrimination against LGBTQ (Lesbian, Gay, Bi-Sexual, Transgender, Queer) people.
Advocates supported the primary feature of the proposed rule, prohibiting inquiries about the sexual orientation or gender identity of an applicant for or occupant of HUD-assisted housing.
However, advocates commented that the practical effect of the provision might be limited to people who choose to and are able to hide their sexual orientation or gender identity. Same-sex couples and families or transgender people might be identified as such without anyone inquiring. Therefore, stronger language was suggested: “Any decision related to any aspect of the tenancy of an individual or family must be made without regard to one’s actual or perceived sexual orientation or gender identity.” The intent was to proscribe a housing provider from using perceived or actual sexual orientation or gender identity to deny tenancy, harass a tenant, evict a tenant, or terminate a voucher.
Advance Notice of Proposed LGBT Anti-Discrimination Rule, January 20, 2011
HUD under the Obama Administration posted a media release on January 20, 2011 announcing proposed changes to various program regulations in order to better ensure equal access to housing regardless of sexual orientation or gender identity.
The media release indicated that HUD was seeking comment on a number of proposed definitional changes and specifically lists:
- Prohibiting lenders from using actual or perceived sexual orientation or gender identity as a basis to determine a borrower’s eligibility for, or otherwise alter the terms of, mortgages insured by Federal Housing Administration (FHA).
- Clarifying that eligible families may not be excluded from participation in HUD programs because one or more members may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship.
- Prohibiting owners and operators of HUD-assisted housing, or housing with financing insured by HUD, from asking about the sexual orientation or gender identity of an applicant for, or occupant of, a dwelling, whether renter- or owner-occupied.
In the background section of the advance notice, HUD stated that there was evidence suggesting that lesbian, gay, bi-sexual, or transgender (LGBT) individuals and families did not have equal access to housing. HUD cited a 2007 study conducted by the Michigan Fair Housing Center which found disparate treatment in 32 out of 120 fair housing tests it conducted, as well as a survey of more than 6,000 transgender people conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force which indicated significant levels of housing instability for transgender people.
HUD To Require Compliance with State/Local Laws Prohibiting Discrimination Based on Sexual Orientation/Gender Identity, June 7, 2010
A June 7, 2010 HUD media release announced that HUD would require applicants for competitive programs to comply with state and local anti-discrimination laws that protect lesbian, gay, bi-sexual, and transgender (LGBT) people. Should an applicant be awarded funds under a competitive grant, any subrecipients would also be required to comply with laws proscribing discrimination in housing based on sexual orientation or gender identity. HUD estimated that 20 states and the District of Columbia at the time had laws prohibiting discrimination based on sexual orientation, while 12 states and DC proscribed gender identity discrimination. A formal announcement about the FY10 Notice of Fund Availability (NOFA) General Section containing the requirement was published in the Federal Register on June 11, 2010.
The media release also noted that HUD intends to propose new regulations that clarify the term “family” as it is used to describe eligible beneficiaries includes LGBT individuals and couples. The Federal Housing Administration (FHA) would also instruct its lending institutions that FHA-insured mortgages must be based on the credit-worthiness of borrowers, not on unrelated factors such as sexual orientation or gender identity. In addition, HUD intended to commission a national study of discrimination against LGBT people in the rental and sale of homes.