Fair Housing: Equal Access For LGBT People
NLIHC tracks regulations around equal access for lesbian, gay, bi-sexual, and transgender (LGBT) people.
The 2012 “Equal Access Rule”
Starting with the Obama Administration, HUD began taking administrative actions to protect LGBT peoples’ equal access to HUD-assisted housing. A final regulation, “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity,” was published on February 3, 2012 prohibiting asking people about their 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.
The “Equal Access Rule” allowed inquiries about an applicant’s or occupant’s sex 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.
The 2016 Addition to the Equal Access Rule for CPD Programs (“Gender Identity” rule)
HUD published a final rule, “Equal Access in Accordance With an Individual’s Gender Identity in Community Planning and Development Programs” on September 21, 2016 that required 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 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, but 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 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.
Equal Access Rule for Native American and Native Hawaiian Programs
HUD issued a final rule on November 17, 2016 that applies the provisions of the 2012 Equal Access in Housing rule, including the 2016 CPD “Gender Identity” rule to Native American and Native Hawaiian programs to ensure that all have access to those programs regardless of actual or perceived 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. The final rule amends regulations for: Native American Housing Activities, Community Development Block Grants for Indian Tribes and Alaska Native Villages, Section 184 Indian Home Loan Guarantee Program, Native Hawaiian Housing Block Grant Program, and Section 184A Loan Guarantees for Native Hawaiian Housing.
2020
HUD Publishes Proposed Anti-Transgender Rule, 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 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 rule was never finalized.
The proposed rule would revise 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”). It would allow shelter providers to place and accommodate individuals on the basis of its own policy for determining someone’s sex. It would also allow 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. The proposed rule indicated in the preamble 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.”
Landmark SCOTUS Ruling Weakens Trump 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 LGBT people. In a 6-3 vote in Bostock v. Clayton County, Georgia, 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 LGBT people from discrimination in employment, making it illegal to be fired for simply being LGBT. 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.
2021
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 EO reinforces laws that prohibit sex discrimination, including the Fair Housing Act, which prohibits discrimination on the basis of gender identity or sexual orientation.
HUD to Begin Implementation of Executive Order to Prevent and Combat Sexual Orientation and Gender Identity-Based Discrimination, February 11, 2021
HUD 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.”
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 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.
HUD Withdraws Equal Access Rule, April 27, 2021
HUD withdraws 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.