The Trump administration is moving forward with a rule change that would allow discrimination against homeless transgender people.
The Trump administration is moving forward with a rule change that will give single-sex homeless shelters the green light to discriminate against transgender people. The change would gut a rule established by the Obama administration in 2016 titled "Equal Access in Accordance With an Individual’s Gender Identity in Community Planning and Development Programs."
The 2016 Equal Access rule required that single-sex shelters that received funding from the U.S. Department of Housing and Urban Development accommodate and place "an individual in temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities ... in accordance with the individual's gender identity."
Last year, HUD said that the new rule would be part of the regulatory agenda and on Wednesday, the department released a statement announcing that it is moving forward with it. HUD Secretary Ben Carson argued that the change was meant to safeguard victims of domestic violence and human trafficking and protect the religious beliefs of shelter providers.
Carson said, "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."
Last year, Carson visited HUD's office in San Francisco and, according to agency staffers interviewed by the Washington Post, said society didn't seem to know the difference between men and women anymore. They said that Carson also said he was concerned about "big, hairy men" attempting to get inside homeless shelters for women.
Following HUD's announcement, Sharita Gruberg, senior director for the LGBTQ research and communications project at the Center for American Progress, stated, "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."
Due to the COVID-19 pandemic and the safety measures states have taken to keep Americans at home, the unemployment rate in the United States is currently 11.1%, and 17.8 million Americans are out of work. According to the National Alliance to End Homelessness, transgender and nonbinary adults are more likely to experience unsheltered homelessness than cisgender adults.
More people could be at risk of losing housing soon. A Human Rights Campaign report released in May found that 14% of LGBTQ people of color asked for delays in paying rent because of the pandemic. Transgender people, who face discrimination in housing discrimination, health care, and employment, are particularly vulnerable right now, advocates for LGBTQ equality say, and this rule would make matters worse.
Gruberg said, "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."
Dylan Waguespack, public policy and external affairs director at True Colors United, an organization that focuses on youth homelessness and LGBTQ young people, said in a statement: "The current regulations provide safety in HUD-funded programs, and Trump's proposed rule change would only leave trans people less safe and more at risk, especially during a global health crisis."
Sasha Buchert, a senior attorney in the Washington, D.C., office of civil rights organization Lambda Legal, said Carson's theories about abusers sneaking into shelters are not supported by any evidence. The 22 states with laws explicitly prohibiting housing discrimination based on sexual orientation and gender identity in particular have shown no evidence of such abuse, Buchert said. "It's [Carson's] own bias matched up against the reality of shelters functioning with trans people protected under the law."
Buchert said the rule will result in confusion for many transgender people, some of whom will not go to shelters if they believe they will experience discrimination and not be protected against it in the law. It could also affect any person experiencing homelessness, including cisgender people, who doesn't conform to gender stereotypes.
Buchert said that any proposed rule would not change the Fair Housing Act which she said should protect transgender people from discrimination. A historic ruling in June by the U.S. Supreme Court that LGBTQ workers are protected against sex discrimination by Title VII of the Civil Rights Act of 1964 adds further protection, she said, adding that she would shocked if Lambda Legal didn't eventually move forward with a lawsuit against the rule.
"We have argued for a long time that sex discrimination protections don't end at Title VII and the courts have agreed with us. ... All these statutes are read consistently and it would be irrational, at least, to suggest it should be interpreted one way by the U.S. Supreme Court in Bostock and a completely different way under the Fair Housing Act. What they're proposing clearly violates the Fair Housing Act as well," Buchert said.
Published with permission of The American Independent Foundation.