Trump administration rule lets shelters decide who is a woman based on facial hair

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The rule would allow staff to use factors such as facial hair and height in deciding whether to admit people into homeless shelters.

The Trump administration is proposing to allow the staff of single-sex homeless shelters to use a person's facial hair as a factor in deciding whether they are allowed inside a women's shelter.

Earlier this month, the U.S. Department of Housing and Urban Development announced that it would move forward with a regulation that would gut Obama-era nondiscrimination protections for transgender people at single-sex shelters. The Obama administration's rule, called "Equal Access in Accordance With an Individual’s Gender Identity in Community Planning and Development Programs," required that single-sex shelters receiving HUD funding place and accommodate people experiencing homelessness in accordance with their gender identity.

Vox obtained a copy of the proposed new rule, which has not yet been publicly released. It includes provisions allowing shelter staff to consider people's appearance, including "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," in determining who qualifies to use a single-sex women's shelter.

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Advocates for the rights of transgender people say the new rule would result in the exclusion of many transgender women from single-sex shelters that accommodate people with their gender identity. Cisgender women who do not fit the staff's definition of "female" could be similarly harmed by the enforcement of strict gender norms, they say.

Transgender and nonbinary adults are more likely to experience unsheltered homelessness than cisgender adults, according to the National Alliance to End Homelessness.

Transgender people who have experienced homelessness say they have been discriminated against based on their gender, and some have been either thrown out of shelters or expected to dress differently to remain in them. The Obama-era regulations that HUD is seeking to roll back were intended to prevent such discrimination.

According to the 2015 U.S. Trans Survey published by the National Center for Transgender Equality, one in eight respondents said they had experienced homelessness in the past year. Of those, 4% said they were denied shelter access because they were transgender, 9% said they were thrown out once staff realized they were transgender, and 14% said shelter staff forced them to change their gender presentation in order to stay at the shelter.

Jennifer C. Pizer, senior counsel and law and policy director at Lambda Legal, a civil rights organization focusing on LGBTQ people, called the rule "the most simple-minded of gender stereotyping."

"This new proposal continues the administration's obsessive determination to thwart Obama administration rules that protect transgender people from sex discrimination," Pizer said. "These rules can be life-saving in emergency shelters and housing, and life-path-saving in employment and education. As this administration continues its wrong-headed destruction of nondiscrimination rules, it is keeping our litigation team in overdrive.”

Kris Hayashi, executive director of the national organization Transgender Law Project, said the rule change is part of a larger effort by right-wing conservatives to attack the movement for transgender equality. Many states have considered legislation this year that bans trans student athletes from competing on sports teams consistent with their gender. Idaho Gov. Brad Little (R) signed such a bill into a law in March, and the Department of Justice has defended it.

"Merely judging people by their physical characteristics, like invasive exams and medical tests, is yet another way for the Trump administration and anti-trans lawmakers to expose trans people to humiliation and harm while attempting to strip them of rights and protections," Hayashi said.

He added, "With this announced rule, the Trump administration is seeking to expose trans people, and now potentially some cisgender people as well, to violence and harm within shelters or to deter them from accessing shelter for fear of discrimination, misgendering, and violence."

Human Rights Campaign president Alphonso David said, "Federal agencies have a responsibility to ensure programs are accessible to everyone who is eligible, but the Trump-Pence administration is deliberately finding ways to facilitate discrimination against vulnerable communities, particularly transgender women of color."

David said the HUD rule change proposal is another in a long line of assaults by the Trump administration that risk the lives of transgender people.

"They should reverse this proposal immediately. We will not accept yet another attack on us," he said.

After only month in office, Donald Trump rolled back Obama administration guidelines that allowed transgender students to use bathrooms and other facilities consistent with their gender. News broke in April that the Trump administration was getting rid of an Obama administration regulation that says transgender people can't be discriminated against while they access health care. The change was finalized in June, during Pride Month.

HUD Secretary Ben Carson's attitudes toward transgender people, and LGBTQ people more broadly, are well-documented. When Carson visited HUD's office in San Francisco last year, HUD staffers told the Washington Post, Carson commented that society didn't seem to know the difference between men and women anymore. He also reportedly said he was concerned about "big, hairy men" attempting to get inside homeless shelters for women.

Carson sent out an email to staffers to clarify his comments. In doing so, he further framed the inclusion of transgender people as in direct opposition to the safety of victims of abuse.

"Our society is in danger when we pick one issue (such as gender identity) and say it does not matter how it impacts others because this one issue should override every other common-sense consideration," Carson wrote.

Published with permission of The American Independent Foundation.