Operators of homeless shelters would be allowed to classify transgender women as men based on such characteristics as height, facial hair, and Adam’s apples, according to a new proposed rule obtained by Vox.
The Department of Housing and Urban Development announced July 1 that it would be making changes to the Equal Access Rule, which was formulated when Barack Obama was president and has required that people in single-sex or sex-segregated shelters that receive HUD funding be placed according to their gender identity. But changes to the rule proposed by Donald Trump’s administration would mean that shelter operators can decide where to place these clients.
The text of the amended rule has not been released yet, and it is subject to a 60-day period of public comment before it becomes final. But the text was leaked to Vox, which published a story on it Friday evening.
The rule says shelter staff “may determine an individual’s sex based on a good faith belief that an individual seeking access to the temporary, emergency shelters is not of the sex, as defined in the single-sex facility’s policy, which the facility accommodates.”
That “good faith belief” can be take into account “factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics which, when considered together, are indicative of a person’s biological sex.” If staffers don’t judge the person to be female, they can demand proof of gender, including government-issued identification.
This will mean, activists point out, that trans women can be forced into housing with men, putting them at risk of physical and sexual assault. Some will choose sleeping on the streets over that option. It will also affect cisgender women who are masculine-presenting or who have conditions such as hirsutism, which causes hair to grow on a woman’s face, chest, or back.
HUD Secretary Ben Carson, who has a long and strong anti-LGBTQ+ record, is demonstrating a “willful disregard for the survival of transgender people,” True Colors United spokesman Dylan Waguespack told Vox. His organization advocates for LGBTQ+ youth experiencing homelessness.
“He’s on the wrong side of history and the wrong side of the law,” Waguespack continued. “It’s critical that trans people across the U.S. hear the message loud and clear that they are legally entitled to gender-appropriate homelessness services under the law.” HUD officials would not comment to Vox.
Due to ongoing discrimination, homelessness is a serious problem among transgender Americans. Nearly one-third of transgender and nonbinary people experience homelessness at some point in their life, according to the 2015 U.S. Transgender Survey, and the proportion rises to one-half for those who are Black, Middle Eastern, multiracial, or undocumented.
U.S. Reps. Maxine Waters and Jennifer Wexton wrote a letter urging HUD to reconsider the rule, which has already been reviewed by Congress. They noted the recent Supreme Court decision in Bostock v. Clayton County, which found that anti-LGBTQ+ discrimination is sex discrimination and therefore illegal under federal law. That decision applied only to employment, but they said its reasoning is “potentially applicable” to housing and other aspects of life.
Carson, who once spoke of “big, hairy men” in women’s shelters, responded that because shelters are temporary housing, they are not covered by the federal Fair Housing Act, and he asserted that the existing rule “permits any man, simply by asserting that his gender is female, to obtain access to women’s shelters,” according to a copy of his letter obtained by Vox.
That’s a “classic anti-trans dog whistle,” the site notes, painting trans women as potential predators, all evidence to the contrary — and in fact, they’re likely to become victims of predators if housed with men. There’s also scant evidence of men posing as trans women in order to enter women’s shelters.
True Colors United and other LGBTQ+ groups have banded together for the Housing Saves Lives campaign to fight the amended rule. Members of the public can register at HousingSavesLives.org to get information on how to submit comments.