The Housing and Urban Development Agency announced a proposed rule Wednesday that would allow homeless shelters that receive federal funding to discriminate against transgender people.
Though the text of the proposed rule is not yet available and the rule has not been posted on the Federal Register, the agency issued a press release announcing it, explaining that while shelters are barred from excluding people based on their transgender status, they are also allowed to ignore a person’s gender identity and house them according to their assigned sex at birth or their legal sex. In other words, a trans woman can’t be turned away from a shelter for being trans, but she can be forced to house in a men’s shelter.
Dylan Waguespack, a spokesperson for True Colors United, an advocacy group that focuses on supporting LGBTQ homeless youth, said that HUD Secretary Ben Carson is “talking out of both sides of his mouth.”
“They are trying to put forward this narrative in which transgender people are protected from discrimination, but in fact, when you read the proposal itself, it does the exact opposite,” he told Vox. “It creates unsafe conditions and unsafe barriers to housing and services for trans people in the midst of a global pandemic.”
The rule, if finalized, would not overrule state and local laws, but it would go into effect in the 38 states that do not already have housing protections for transgender people.
It’s the latest in a long line of anti-trans policies rolled out by the Trump administration. Almost immediately after he took office in 2017, the administration rolled back an Obama-era memo for schools to fairly treat trans students. Then in July of that year, Trump announced he would be ordering the military to ban trans people from serving. The administration went after trans prisoners as well in May 2018, deciding that in most cases, trans people should be housed according to their assigned sex at birth.
“This is a continual angle for the administration to try to do anything to just harm my community,” LaLa Zannell, trans justice campaign manager for the ACLU, told Vox. “With a pandemic going on, the Department of Housing and Urban Development could be focusing on making sure that [trans] people are staying in the houses that they already have, and that they’re in safe and stable housing. They should not invest in resources that could crack down on homelessness for more trans people.”
The rule will allow shelters in most states to ignore a trans person’s gender identity when making housing policies
As Waguespack noted, the text of HUD’s release is confusing. Here’s how it could affect trans people looking for shelter.
“The new rule allows shelter providers that lawfully operate as single-sex or sex-segregated facilities to voluntarily establish a policy that will govern admissions determinations for situations when an individual’s gender identity does not match their biological sex,” the agency said in a statement.
This means that the rule allows shelters to completely ignore a trans person’s gender identity and can instead choose to house them according to their assigned sex at birth, which goes against the 2016 Equal Access Rule established by the Obama administration.
The statement continues: “Each shelter’s policy is required to be consistent with state and local law, must not discriminate based on sexual orientation or transgender status, and may incorporate practical considerations of shelter providers that often operate in difficult conditions.”
What the agency is seemingly trying to do with the rule is define discrimination against trans people as based on their transgender status rather than their gender identity — but for trans people, the two are intertwined. In other words, a shelter provider cannot simply disallow all trans people from utilizing their services, but they can, for example, house trans women in men’s shelters.
There are two main problems with forcing trans homeless people into spaces that correspond with their birth-assigned gender rather than their gender identity. The first is that such a policy exposes trans people, especially trans women, to potential violence and sexual assault inside those spaces. And as a result, trans people are more likely to choose sleeping in the streets rather than risk going to a shelter.
Because of a cycle of discrimination and poverty, trans people are more likely than their cisgender peers to experience homelessness. According to the National Center for Transgender Equality, 29 percent of trans people live in poverty, and one in five trans people in the US will be homeless at some point in their lifetimes. The numbers are even starker for Black trans people: A 2015 report indicated that 34 percent of Black trans people live in extreme poverty, compared to 9 percent of Black cis people.
Rep. Jennifer Wexton (D-VA) has been an outspoken critic of HUD’s rule change ever since the department first said it was pursuing a change last May. “Requiring trans people to be housed according to their birth gender rather than their gender identity is a recipe for harassment and sexual or physical assault,” she told Vox. “This population is already under enough attack. We can’t have them avoid staying shelters.”
Wexton recalled asking Carson during a hearing of the House Financial Services Committee in May 2019 whether he had any intention of changing the Equal Access Rule. “He said he had no plans to do so. And the very next day, [HUD] announced their intention to gut the equal access rule. So they are not being honest.”
The rule’s timing, about two weeks after the Supreme Court ruled that discrimination against transgender people constitutes discrimination on the basis of sex, caught the eye of both Wexton and LGBTQ advocates.
According to a letter obtained by Vox from Wexton and Rep. Maxine Waters (D-CA) to Carson and dated June 29, HUD’s proposed rule was in process before the Supreme Court’s decision in Bostock v. Clayton County.
“The release of a potentially applicable Supreme Court decision during the period of our regulatory review is unique and raises concerns about the applicability and implementation of the proposed rule,” reads Wexton and Waters’s letter, which asked Carson to reconsider publishing the proposed rule before conducting additional legal analysis.
The proposed rule now enters a 60-day public comment period before it can be finalized. “They’re rushing to get it through before they may not be in control anymore,” said Wexton. “It’s disappointing but not surprising that they’re rushing it through in this way, especially given the broad implications of Bostock.”
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