Equal Access for Transgender People: Trump Administration's Attempt to Eliminate Shelter Protections for Transgender People
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Equal Access for Transgender People:
Trump Administration’s Attempt to Eliminate
Shelter Protections for Transgender People
By Xavier Arriaga, Policy Analyst, NLIHC or unsafe conditions. HUD’s proposed changes
T
to the Equal Access Rule would allow taxpayer-
he Trump Administration made a concerted
funded discrimination against transgender
effort to remove the protections and
people who are seeking emergency shelter amid
rights of the LGBTQ community since
a global pandemic.
it came into power. This effort began on the
day of Trump’s inauguration in 2017 when the CHANGES TO THE EQUAL ACCESS
Administration removed all mention of LGBTQ RULE
people from the White House, Department of
State, and Department of Labor websites - the Background
first action in a widespread regulatory onslaught In 2012, HUD published its final rule entitled
of anti-transgender and anti-LGBTQ actions “Equal Access to Housing in HUD Programs
across many agencies. HUD was one of the first Regardless of Sexual Orientation or Gender
agencies to enact the Trump Administration’s anti- Identity.” The 2012 Equal Access Rule was
transgender agenda. In March of 2017, it withdrew created to ensure that HUD’s housing programs
two Obama-era HUD proposals designed to protect would be open to all eligible individuals and
LGBTQ people from experiencing homelessness. families regardless of sexual orientation,
In 2019, HUD announced plans to gut protections gender identity, or marital status. In 2016,
for transgender and gender-nonconforming HUD published a follow-up rule “Equal
people experiencing homelessness by removing Access in Accordance with an Individual’s
a crucial provision in the Equal Access Rule of Gender Identity in Community Planning and
2016. This announcement came a day after HUD Development Programs,” which built upon the
Secretary Ben Carson had testified before the Equal Access Rule of 2012 and ensures equal
House Financial Services Committee and said no access to HUD’s Office of Community Planning
such changes would be made to the Equal Access and Development (CPD) programs, specifically
Rule—meaning he either lied to Congress or was shelters, in accordance with a shelter seeker’s
seriously uninformed about what was going on in gender identity. HUD’s 2016 Equal Access
his agency. Nonetheless, the rule was consistent Rule amendments constituted crucial policy
with Secretary Carson’s anti-transgender to improve the treatment of transgender and
rhetoric that was made apparent whether he gender-nonconforming individuals in securing
was testifying before Congress or making visits emergency shelter.
to communities experiencing high-levels of In 2019, HUD Secretary Ben Carson testified
homelessness. before the U.S. House Financial Services
This was an explicit attack on a community that Committee and was questioned about the
already faced steep barriers to accessing shelter. agency’s implementation and enforcement
One in three transgender Americans has been of the Equal Access Rule. When asked by
homeless at some point in their lives. When in Congresswoman Jennifer Wexton (D-VA) if
shelters, the 2015 U.S. Transgender Survey found HUD was planning any changes for the Equal
that 70% of respondents reported mistreatment Access Rule, he responded: “I’m not currently
in shelters due to their gender identity, and 44% anticipating changing the rule.” A day after, May
reported they had to leave shelters due to poor 22, HUD announced its proposal to gut the rule
and remove protections for transgender and
NATIONAL LOW INCOME HOUSING COALITION 6–59gender-nonconforming people seeking shelter HUD’s Justifications
and emergency housing services. CLAIM #1: THE “2016 RULE RESTRICTED SIN-
On July 24, 2020, HUD published its proposed GLE-SEX FACILITIES IN A WAY NOT SUPPORTED
anti-transgender changes to the Equal Access BY CONGRESSIONAL ENACTMENT.”
Rule, “Making Admission or Placement What the 2016 rule did was to allow people
Determinations Based on Sex in Facilities Under to go to a federally funded shelter consistent
Community Planning and Development Housing with their gender identity – a step that is not
Programs”. prohibited by statute. In fact, the “Violence
Against Women Act” (VAWA) prohibits
HUD’s Proposed Rule
discrimination on the basis of gender identity
Features of the harmful proposed changes in programs (including shelters) that receive
include: federal funds from programs subject to VAWA.
• Revisions to the definition of gender identity VAWA allows sex-segregated shelters to
to mean actual or perceived gender-related consider a person’s sex but requires grantees
characteristics (deleting the current rule’s to provide comparable services to individuals
“the gender by which a person identifies, who cannot be served by sex-specific
regardless of the sex assigned to that person programming.
at birth and regardless of the person’s CLAIM #2: THE “2016 RULE MINIMIZED LOCAL
perceived gender identity”). CONTROL.”
The 2016 rule established a consistent
• Allowing shelter providers to place and
nationwide policy for HUD and taxpayer-
accommodate individuals on the basis of the
funded shelters. Shelters that do not receive
shelter provider’s policies for determining
HUD funds are not impacted by the 2016 rule.
someone’s sex.
CLAIM #3: THE “2016 RULE BURDENED THOSE
• Allowing shelter providers to deny SHELTERS WITH DEEPLY HELD RELIGIOUS CON-
admission using a range of factors, VICTIONS.”
including the provider’s “good faith belief” HUD cites no evidence that the existing
that an individual is not of the sex that the rule places an undue burden on faith-
shelter serves (e.g., a women’s shelter), based shelter providers. In fact, the Center
an individual’s sex as reflected in official for American Progress made a “Freedom
government documents, or the gender with of Information Act” (FOIA) request in
which a person identifies. 2017 to HUD regarding any waivers or
• Allowing shelter providers to use physical accommodations made under the 2012 and
characteristics as “reasonable considerations” 2016 Equal Access Rule. The agency failed to
to determine a person’s biological sex. This locate any waiver requests or complaints from
may include factors such as height, presence service providers indicating that any religious
of facial hair, the presence of an Adam’s exemptions had been requested in the current
apple, and other physical characteristics that or prior Administrations. Aside from a single
HUD claims “when considered together, are anecdotal account and conjecture about how
indicative of a person’s biological sex.” religious organizations may be discouraged
from participating in HUD programs, HUD’s
Despite admitting that data was lacking, HUD proposal provides no concrete evidence
based its justifications on anecdotal evidence and demonstrating that religious providers are
dangerous stereotypes, undocumented “religious unduly burdened by current HUD rules. In
freedom” assertions, and unfounded regulatory fact, the anecdotal account referenced above
burdens on shelters. HUD’s justifications include involved a single shelter that has sued to stop
various false claims. the application of a local anti-discrimination
law on religious grounds; the lawsuit does
6–60 2021 ADVOCATES’ GUIDEnot even involve the application of the Equal submitted op-eds and contributed to news
Access Rule itself. articles. More than 66,000 public comments were
CLAIM #4: THE “2016 RULE HAS MANIFESTED submitted during the 60-day period, becoming
PRIVACY ISSUES.” the largest comment campaign on a HUD
HUD’s proposal relies upon harmful regulation ever.
stereotypes about transgender people Legislative Action
(particularly transgender women) and
fails to provide any evidence that HUD’s In the 116th Congress, Representative David
nondiscrimination policy creates widespread Cicilline (D-RI) and 239 original cosponsors
privacy or safety concerns. HUD relied on introduced H.R. 5, “The Equality Act” which
individual anecdotes without providing data would amend several existing federal civil rights
to demonstrate a larger issue. HUD cynically laws. The bill would prohibit discrimination
invoked survivors of domestic and sexual based on sex, sexual orientation, and gender
violence to attempt to lend credibility to identity in a wide variety of areas including
its discriminatory proposal. However, HUD public accommodations and facilities, education,
failed to acknowledge the view of domestic federal funding, employment, housing, credit,
and sexual violence advocates, who have and the jury system. Specifically, the bill defines
repeatedly made their stance clear. In 2016, and includes sex, sexual orientation, and gender
over 300 domestic violence and sexual identity among the prohibited categories of
violence organizations across the country discrimination or segregation.
signed a National Consensus Statement. Representative Jennifer Wexton introduced H.R.
These leaders agreed: transgender women 3018, “Ensuring Equal Access to Shelter Act
being served alongside other women is of 2019,” which would block HUD’s proposed
appropriate and not a safety issue. They anti-transgender rule modifications to the 2016
updated their letter in 2018 reiterating their Equal Access Rule. Senator Brian Schatz (D-HI)
support. Furthermore, in a statement made introduced a companion bill in the Senate (S.
July 2, 2020, the National Task Force to End 2007), and similar language was included in the
Sexual and Domestic Violence condemned House version of the FY 20 and FY21 spending
HUD’s anti-transgender proposal. More bills.
generally, nondiscrimination protections
During the public comment campaign,
similar to the 2016 Equal Access Rule
Representatives Jennifer Wexton, Frank Pallone
have been adopted in over 20 states and
(D-NJ), Joe Kennedy III (D-MA), and Senator Brian
over 300 localities. These protections have
Schatz (D-HI) submitted a public comment letter
helped increase fairness and opportunity for
signed by 23 Senators and 122 Representatives
vulnerable people.
to the Federal Register opposing HUD’s proposal.
In response to the proposed rule, the Housing BOSTOCK V. CLAYTON COUNTY RULING
Saves Lives campaign was launched and co- On June 15, 2020, The United States Supreme
led by over 50 national and local organizations, Court issued a landmark ruling on the civil
including NLIHC, to encourage the public to rights of LGBTQ people. In a 6-3 vote in Bostock
submit comments during the 60-day comment v. Clayton County, Georgia and R.G. & G.R. Harris
period. Together the campaign worked with Funeral Homes Inc. v. Equal Employment Opportunity
members of Congress to urge HUD to rescind Commission, the court held that Title VII of the
the rule, hosted a Week of Action with an array “Civil Rights Act” bars discrimination based
of national events led by partner organizations, on gender identity and sexual orientation. This
recruited mayors and other public officials from landmark civil rights ruling protects LGBTQ
across the nation to submit a public comment people from discrimination in employment,
and letter opposing the proposed rule, and extending protections for millions of LGBTQ
NATIONAL LOW INCOME HOUSING COALITION 6–61workers, making it illegal to be fired for simply President Biden’s Executive Order
being LGBTQ. The majority’s interpretation is Preventing and Combatting
consistent with the Equal Access Rule’s 2016 Discrimination on the Basis of Gender
provision to ensure protections for transgender Identity or Sexual Orientation
people from discrimination in homeless shelters
On his first day in office, President Joe
and HUD-funded services.
Biden signed an Executive Order directing the
Title VIII of the “Civil Rights Act” (the Fair federal government to fully implement the U.S.
Housing Act) makes it unlawful to sell, rent, Supreme Court’s landmark ruling in Bostock v.
or otherwise make unavailable or deny a Clayton County, Georgia. The ruling was made
dwelling to anyone because of race or color, on June 15, 2020 and held that Title VII of the
religion, sex, national origin, familial status, Civil Rights Act bars discrimination based
or disability Prohibition of discrimination on on gender identity and sexual orientation.
the basis of sex was added in 1974. In addition The order reinforces laws that prohibit sex
to the Equal Access Rule of 2012 and 2016, discrimination, including the Fair Housing Act,
HUD has historically enforced the Fair Housing which prohibits discrimination on the basis of
Act’s prohibition of sex stereotyping to cover gender identity or sexual orientation.
LGBTQ people. The Bostock ruling will influence
This order repudiates the anti-transgender
fair housing rulings because the lower courts
rhetoric that was commonplace in the previous
often rely on Title VII when interpreting the
Administration and is contrary to former HUD
Fair Housing Act. However, HUD had failed to
Secretary Ben Carson’s interpretation of the
consider the Bostock ruling while their proposed
ruling. The Executive Order instructs the head
rule was under review at Congress and continues
of agencies to review all agency actions relating
to explicitly ignore the Supreme Court’s decision.
to sex discrimination and make decisions
Chairwoman Maxine Waters (D-CA) and consistent with the instruction of the order within
Representative Jennifer Wexton sent a letter 100 days. This includes an order to agencies to
to Secretary Ben Carson calling on HUD to consider whether to revise, suspend, or rescind
reconsider its anti-transgender rule proposal such agency action, or new agency actions, as
to the Equal Access Rule due to the potential necessary to fully implement statues that prohibit
contradictions with the Bostock v County ruling. sex discrimination and the policy set forth in the
Secretary Ben Carson responded to this letter, Executive Order.
stating “The Supreme Court’s ruling in Bostock
has no impact on the Department’s proposed FORECAST FOR 2021
rule” incorrectly stating that “We must not
Due in part to the tremendous success of the
place the rights of one group over another as to
Housing Saves Lives campaign and efforts by
diminish the rights of those we are seeking to
advocates, the publication of the final rule was
serve.”
delayed and never published by the previous
120 Members of Congress called on President administration. Since the final rule did not get
Trump to direct the federal government to published and President Biden’s Executive Order
remove all regulations, executive orders, and clearly orders agencies to rescind agency action
agency policies that discriminate against the to fully implement Bostock v. Clayton County,
LGBTQ community in light of the Bostock v. Clayton Georgia, we can expect the head of HUD to rescind
County ruling. this rule.
6–62 2021 ADVOCATES’ GUIDEHOW ADVOCATES CAN TAKE
ACTION
Urge Legislators to:
• Encourage Senators to pass H.R. 5, the
“Equality Act.”
• Address issues of discrimination and violence
against transgender people, especially Black
and Latinx transwomen.
• Work immediately to reverse all harmful
regulations and anti-transgender and
anti-LGBTQ policies made by the Trump
Administration.
Urge HUD to:
• Immediately withdraw the proposed changes
to the Equal Access Rule.
• Work to address the housing and emergency
shelter needs of the LGBTQ community.
Urge the Incoming Biden Administration to:
• Work with Members of Congress to pass H.R.
5, the “Equality Act” and ensure immediate
and full enforcement across all federal
departments and agencies.
• Work to address the housing and emergency
shelter needs of the LGBTQ community.
• Address issues of discrimination and violence
against transgender people, especially Black
and Latinx transwomen.
FOR MORE INFORMATION
HUD’s “Making Admission or Placement
Determinations Based on Sex in Facilities Under
Community Planning and Development Housing
Programs” Proposed Rule: https://bit.ly/3m2Jr4z.
Executive Order “Preventing and Combatting
Discrimination on the Basis of Gender Identity or
Sexual Orientation”: https://bit.ly/2Mh4FzC.
Housing Saves Lives Campaign:
housingsaveslives.org.
National Center for Transgender Equality: https://
transequality.org/.
True Colors United: https://truecolorsunited.org/.
NATIONAL LOW INCOME HOUSING COALITION 6–63You can also read
