HUD Proposal to Weaken LGBTQ Access to Emergency Homelessness Services Clears OIRA

A HUD proposal to weaken enforcement of the Equal Access to Housing rule component that provides protections to LGBTQ people experiencing homelessness and seeking emergency shelter cleared the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) on June 4. The proposal’s title, “Revised Requirements Under Community Planning and Development Housing Programs,” hides its malicious intention. The proposal has been at OIRA since April 24, 2019 and has drawn widespread criticism from NLIHC and others. The proposed rule now goes to the appropriate congressional committees for a 15-day courtesy period, after which it will eventually be published in the Federal Register for public comment.

Weakening this component of the Equal Access rule and its enforcement mechanisms is unacceptable. Access to shelter is a basic, fundamental necessity. LGBTQ youth are more than twice as likely than their non-LGBTQ peers to experience homelessness, and black LGBTQ youth have the highest rates of youth homelessness. One in three transgender people will experience homelessness in their lifetime, and 70% of trans people who have used a shelter have experienced harassment. Further, increasing the potential for LGBTQ and transgender people to experience homelessness for the first time or to endure longer periods of homelessness in the midst of the coronavirus pandemic is unconscionable.

This component of the Equal Access to Housing Rule and related guidance was designed to give service providers the information they need to serve transgender people well. The rule is meant to provide a modicum of protection for LGBTQ people.

According to a summary in HUD’s Fall 2019 Regulatory Agenda, HUD intends to propose revisions to HUD’s Office of Community Planning and Development (CPD) Equal Access rule. It would allow shelter providers to:

  • Consider an individual’s sex to determine whether to admit and accommodate someone in a single-sex or sex-segregated shelter or facility with shared bathrooms or shared sleeping quarters.
  • Consider a range of factors when deciding whether to admit or accommodate someone, including privacy, safety, religious beliefs, and an individual’s sex as reflected in official government documents, as well as the gender which a person identifies with. [Note: the “religious beliefs” element of the proposal aligns with a more recent proposed rule, the so-called “Equal Participation of Faith-Based Organizations” (see Memo, 2/18)]

Background on the Existing Rule

HUD published a final rule on September 21, 2016 that requires housing, facilities, and services funded through programs administered by CPD to have policies and procedures that ensure equal access to programs, benefits, services, and accommodation for individuals based on their gender identity, without intrusive questioning or documentation requirements. The 2016 rule requires recipients and sub-recipients who receive assistance from CPD, along with owners, operators, and managers of shelters, buildings, and facilities with shared sleeping quarters or shared bathrooms, to accommodate individuals according to their gender identity.

CPD administers the Community Development Block Grant (CDBG), HOME, Emergency Solutions Grants (ESG), Continuum of Care (CoC), Housing Opportunities for Persons with AIDS (HOPWA), and the national Housing Trust Fund (HTF) programs.

The 2016 rule addressed the more comprehensive February 3, 2012 “Equal Access Rule” that ensures all housing assisted by all HUD programs is open to all eligible people without regard to actual or perceived sexual orientation, gender identity, or marital status. HUD did not adopt a policy regarding the placement of transgender and gender nonconforming persons in temporary, emergency shelters with shared sleeping quarters or shared bathing facilities. Instead, HUD intended to conduct research and monitor its programs to determine whether additional guidance or national policy was needed. Prior to issuing the 2016 rule, HUD published interim guidance through Notice CPD-15-02 on February 20, 2015. This guidance is no longer applicable.

A summary of HUD’s current proposal, “Revised Requirements Under Community Planning and Development Housing Programs,” is in its Fall Regulatory Agenda at: