HUD published proposed anti-transgender changes to the Equal Access Rule in the Federal Register on July 23. This 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 will now enter 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 include:
- Revisions to 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).
- Allowing shelter providers to place and accommodate individuals on the basis of their own policies for determining someone’s sex.
- Allowing shelter providers to deny admission using a range of factors, including the provider’s “good faith belief” that an individual is not of the sex that the shelter serves (e.g., a women’s shelter), an individual’s sex as reflected in official government documents, or the gender with which a person identifies.
- Allowing shelter providers to use physical characteristics as “reasonable considerations” to determine a person’s biological sex. This may include factors such as height, presence 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.”
Despite admitting that data is lacking, HUD bases its justification on anecdotal evidence and dangerous stereotypes, exaggerated “religious freedom” assertions, and unfounded regulatory burdens on shelters. Amid a global pandemic and racial injustices plaguing our country, it is unconscionable for the administration to dedicate resources and time to dismantling anti-discrimination laws and policies.
HUD’s justification includes various false claims:
- Claim #1: The “2016 rule restricted single-sex facilities in a way not supported by Congressional enactment.”
What the 2016 rule actually did was to 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 cites no evidence that the existing rule places 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 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 provides no concrete evidence demonstrating that religious providers are unduly burdened by current HUD rules. In fact, the anecdotal account referenced above involves a single shelter that has sued to stop the application of a local antidiscrimination law on religious grounds; the lawsuit does not even involve the application of the Equal Access Rule itself.
- Claim #4: The “2016 Rule has manifested privacy issues.”
HUD’s proposal relies upon harmful stereotypes about transgender people (particularly transgender women) and fails to provide any evidence that HUD’s nondiscrimination policy creates widespread privacy or safety concerns. Once again, HUD relies on individual anecdotes without providing data to demonstrate a larger issue. HUD cynically invokes survivors of domestic and sexual violence to attempt to lend credibility to its discriminatory proposal. However, HUD fails to acknowledge the view of domestic and sexual violence advocates, who have repeatedly made their stance clear. In 2016, over 300 domestic violence and sexual violence organizations across the country signed a National Consensus Statement. These leaders agree: transgender women being served alongside other women is appropriate and not a safety issue. They updated the letter in 2018, available here. 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 Equal Access Rule have been adopted in over 20 states and over 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 does not provide an analysis of the impact of the Supreme Court’s landmark ruling in Bostock v. Clayton County, Georgia on 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 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 rescind its anti-transgender rule altogether. The decision not to do so was 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 (see Memo, 7/13)
Read the proposed rule at: https://bit.ly/3fVo5DL
Read NLIHC’s comparison of the texts of the proposed anti-transgender rule changes and the 2016 final rule at: https://bit.ly/3f5FWad
Read the joint press statement from NLIHC and other Housing Saves Lives partners on HUD’s announcement of the proposed rule at: https://bit.ly/2CWWWBS
Go to HousingSavesLives.org to submit your comment opposing the rule and to keep up with the latest news and resources.