HUD Seeks to Allow Discrimination Against Homeless Trans People

The Department of Housing and Urban Development wants to let homeless shelters discriminate against transgender people.

Under changes to the Equal Access Rule, HUD seeks to allow single-sex or sex-segregated shelters that receive federal funding "to voluntarily establish a policy that will govern admissions determinations for situations when an individual's gender identity does not match their biological sex," according to a HUD press release issued Wednesday.

Although HUD claims it will not allow discrimination based on sexual orientation or gender identity, LGBTQ+ activists say the new rule will lead to trans people being turned away, trans women being forced into housing for men, or trans men into housing for women. It would also affect gender-nonconforming and nonbinary people.

The revised rule, which is subject to a 60-day period of public comment before becoming final, has been in the works for more than a year. The agency announced plans in May 2019 to change the Equal Access Rule, which was implemented in 2012 under President Barack Obama and revised in 2016.

The Obama-era rule prevented shelters that receive HUD funding from discriminating on the basis of sexual orientation and gender identity. It also required that people in single-sex or sex-segregated shelters be placed according to their gender identity, as transgender and gender-nonconforming people often experience harassment and violence when placed according to the sex they were assigned at birth, and many have indicated that being on the streets was preferable to that option. Under Wednesday's revision, shelter operators will be able to decide where to place these clients.

HUD Secretary Ben Carson, who is notoriously anti-LGBTQ+, said in announcing the amended rule that it would better accommodate shelter operators' religious beliefs. "This important update will empower shelter providers to set policies that align with their missions, like safeguarding victims of domestic violence or human trafficking," he said in the release. "Mission-focused shelter operators play a vital and compassionate role in communities across America. The federal government should empower them, not mandate a single approach that overrides local law and concerns. HUD also wants to encourage their participation in HUD programs. That's exactly what we are doing with this rule change."

Advocates for LGBTQ+ equality were quick to condemn the proposed rule change. "The Trump administration is targeting transgender people for discrimination," said a statement released by Sharita Gruberg, senior director for the LGBTQ Research and Communications Project at the Center for American Progress. "Giving shelters a license to discriminate against transgender people would be wrong at any time, but to do so in the midst of a pandemic and an economic crisis constitutes an act of wanton cruelty."

"This proposed rule risks the lives and safety of people who are transgender or gender-nonconforming, whose ability to obtain lifesaving housing services will be up to the whims and potential biases of individual providers," she added. The administration, she said, should instead align its policies with the recent Supreme Court ruling that found discrimination based on sexual orientation and gender identity to be illegal forms of sex discrimination; that ruling has force of law only when applied to employment, but it can serve as guidance for other situations.

Mara Keisling, executive director of the National Center for Transgender Equality, also mentioned the ruling. "This proposal is yet another attack from the Trump administration at the safety of the most vulnerable members of our community. It flies in the face of the Bostock Supreme Court ruling, so it will not stand, but it could still put people in danger," she said in a blog post. "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. 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. We will fight this rule like trans lives depend on it because trans lives do depend on it."

"The actions of this administration are as cruel as they are lawless," said Sasha Buchert, a senior attorney with Lambda Legal. "Transgender people suffer disproportionately high rates of homelessness, and are subjected to similarly high rates of abuse, harassment and violence, especially transgender women of color. For the Trump-Pence administration to encourage shelters to shut their doors to an already vulnerable population during a deadly and raging pandemic is unconscionable. With today's announcement, this administration is not only yet again betraying our nation's core commitment to liberty and justice for all, but also, and more fundamentally, the country's commitment to the safety and security of all who live here." Buchert encouraged those who face discrimination to seek redress under the Fair Housing Act's protections against sex discrimination.

"This new rule 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," added LaLa Zannell, trans justice campaign manager for the American Civil Liberties Union. "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?"