The Department of Housing and Urban Development plans to move forward with a measure that would permit federally funded homeless shelters to house transgender clients according to their sex assigned at birth.
The HUD proposal would reverse a 2016 measure implemented under the Obama administration that built on provisions enacted four years earlier. The 2012 Equal Access Rule mandated that shelters are "open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status," and the administration issued further guidance clarifying that the rule barred shelters from denying access to trans people in accordance with their gender identity.
HUD announced Wednesday that it intends to effectively strike the 2016 trans-inclusive guidelines. When it comes to housing transgender people in single-sex or sex-segregated shelters, HUD Secretary Ben Carson said in a statement that the Obama administration's guidelines "mandate a single approach that overrides local law and concerns."
"This important update will empower shelter providers to set policies that align with their missions, like safeguarding victims of domestic violence or human trafficking," Carson said. "Mission-focused shelter operators play a vital and compassionate role in communities across America. The Federal Government should empower them."
A 28-page document released to members of Congress in May spells out some of the changes, as the Washington Blade previously reported. Should the guidelines be implemented, women's shelters would be permitted to "decline to accommodate a person who identifies as female but who is a biological male."
The document seeks to sidestep accusations of anti-trans discrimination by saying single-sex shelters that accommodate women based on their "biological sex" cannot refuse to "accommodate a person who identifies as male but who is a biological female."
Civil rights groups and LGBTQ advocates swiftly condemned the rule change, which had long been expected, as HUD signaled its intention to overturn the transgender nondiscrimination guidelines in May 2019. Lala Zannell, trans justice campaign manager for the American Civil Liberties Union, said the decision would be "particularly dangerous for the Black and brown transgender women who face extraordinarily high rates of unemployment and homelessness at any time, and particularly in this economic crisis."
Zannell said in a statement: "Housing Secretary Ben Carson: Where should the Black and Brown trans women who have faced discrimination at work and violence in their homes and the streets go after we have been turned away from shelters? Shelters funded by taxpayers should be open to all — period."
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Multiple studies have found that trans people face high rates of homelessness yet also experience widespread discrimination when seeking supportive services. A report in April from the Williams Institute, a pro-LGBTQ think tank at UCLA, found that 1 in 5 homeless young people identify as LGBTQ. The study also revealed that about a third of trans and nonbinary people have lacked stable housing at some point.
A separate survey of trans people who have experienced homelessness, published in 2015 by the National Center for Transgender Equality, found that 70 percent had experienced some form of discrimination, harassment or violence when trying to find safe shelter. Twenty-six percent said they had avoided seeking out services for fear of discrimination.
The group's executive director, Mara Keisling, said the findings show that "discrimination and criminalization have left countless transgender people, particularly transgender people of color, exposed to violence and abuse, all while family rejection can leave transgender youth with nowhere to turn." She said the proposed rule, if allowed to go into effect, would only make those problems worse.
"Secretary Carson is contradicting the very mission of his department by trying to make shelters less safe for those who need them and further endangering the lives of marginalized people," Keisling said in a statement. "We will fight this rule like trans lives depend on it because trans lives do depend on it."
LGBTQ groups have said they intend to sue when the final proposal is issued, which is expected in the coming weeks. After the document is released, the public will have the chance to comment on it for 60 days.
In a landmark case that could have major implications for transgender people seeking housing according to their gender identity, the Supreme Court ruled last month that workplace discrimination based on "sex" includes discrimination based on sexual orientation and gender identity.
Writing for the majority, conservative Justice Neil Gorsuch wrote that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."
The LGBTQ rights group Lambda Legal also suggested that trans people seeking shelter in alignment with their gender identities are protected under the Fair Housing Act, a 1968 law that bans discrimination in housing on the basis of characteristics like race, sex and national origin. A future court ruling could definitively decide whether the definition of "sex" under that law also extends to gender identity and sexual orientation.
In the document outlining the proposed guidelines, HUD conceded that there is no evidence "suggesting that transgender individuals pose an inherent risk to biological women" while housed in homeless shelters.
Last year, Carson was met with widespread backlash after he was reported to have claimed during a HUD meeting that "big, hairy men" would exploit nondiscrimination rules to gain entry to women's homeless shelters under the guise of being transgender. At least one staff member walked out of the meeting in protest, The Washington Post reported at the time.