A Discriminatory Housing Rule Would Allow Shelters To Turn Away Transgender People

On Wednesday, the Trump administration continued its attack on the transgender community when the Department of Housing and Urban Development (HUD) announced a proposal that would allow federally funded homeless shelters to discriminate against transgender people by denying them access to shelters that align with their gender identity. The proposal argues that the “religious beliefs of shelter providers” may take circumstantial precedence. Advocates for housing and for the transgender community have pointed out that HUD's core mission is to “build inclusive and sustainable communities free from discrimination," which this rule explicitly goes against.

The proposal uses terms that obscure the impact it would have on the transgender community. The headline on the announcement says the agency is “updat[ing] the Equal Access Rule,” citing their “commitment to fair treatment for all individuals” and “allowing shelter providers to establish an admissions policy that best serves their unique communities.”

Although the Equal Access Rule made it illegal for federally funded housing to discriminate against LGBTQ+ people and families by prohibiting inquiries into someone’s gender identity or sexual orientation, it does not “address the right of transgender shelter-seekers to access shelter in accordance with their gender identity,” according to the Center for American Progress.

However, advocates for the transgender community have been quick to point out the devastating impact the rule would have on transgender people — and, specifically, Black and brown transgender women. “This new rule would be particularly dangerous for the Black and brown transgender women who face extraordinarily high rates of unemployment and homelessness at any time, and particularly in this economic crisis,” LaLa Zannell, Trans Justice Campaign Manager for the American Civil Liberties Union, said in a statement.

“Transgender people who need shelter already face pervasive discrimination and often end up sleeping in extremely dangerous and unsafe conditions on the street,” Shannon Minter, Legal Director for the National Center for Lesbian Rights, told Refinery29 via email. “This rule would make that discrimination exponentially worse and result in more violent attacks, sickness, shortened lifespans, and deaths.”

Transgender people also face extraordinarily high rates of houselessness. According to the National Center for Transgender Equality, one in five transgender people has faced homelessness in their life. A 2011 study from NCTE found that the majority of transgender people trying to access shelters were harassed by staff or residents, while 29 percent were turned away altogether. In 2018, the Center for American Progress and the Equal Rights Center found that only 30 percent of shelters were willing to house transgender women with cisgender women.

Advocates told the New York Times that the rule is written broadly enough that it could impact people who are not transgender, and has the potential to be applied to people whose appearance or gender expression does not conform to whatever the shelter workers’ deem as societal norms.

The rule would not impact funding to shelters that choose to honor the identity of transgender people, but it permits them to discriminate. The proposed modifications, however, could allow for shelters to place people in single-sex shelters based on their “biological sex.” As Chase Strangio, a lawyer for the American Civil Liberties Union who has been involved in a number of high profile cases defending the rights of transgender individuals, noted on Twitter, “There is no such thing as binary and fixed biological sex.”

This is similar to the argument that the Trump administration used in order to attack transgender people’s ability to access health care by allowing providers to discriminate by denying them treatment based on their gender identity — which also cited the religious beliefs of practitioners (an argument that has also been used to restrict people’s access to birth control and abortion).

"The most disturbing part of the implementation of this rule is Secretary Carson's reliance on long-debunked scandalous nonsense about predators pretending to be transgender in order to access women's shelters," Gillian Branstetter, spokesperson for National Women's Law Center, told Refinery29. "It's critical to understand that laws protecting transgender people are widely supported across the entire field that actually works to keep people safe and keep people housed." That includes the YWCA, which is the single largest operator of women's shelters in the country.

According to The Washington Post, when Sec. Carson raised the notion last year of "big, hairy men" "dressing as women" to enter women's shelters and purportedly assault the cisgender women in them, he was denounced by his own staff, including people who walked out of the meeting where he made the comment. Branstetter cites this as an example of the degree to which Sec. Carson's "place at HUD is an insult to the entire mission of that department and the people who have dedicated their lives to the cause of housing safety and security," and the degree to which "he is speaking entirely out of hand."

The argument of men dressing as women to access women's spaces has long been used as an argument to deny transgender women their rights, but there has never been any evidence that this occurs. Instead, transgender women are more likely to be the victims of violence when trying to access women's spaces than they are to be perpetrators. According to the NCTE study, 22 percent of transgender people who had accessed shelters reported being sexually assaulted by residents or staff, something that transgender women are especially vulnerable to when they are placed in men’s shelters.

“From its start, the Trump administration has been controlled by far-right anti-LGBTQ+ organizations that have a single-minded, obsessive focus on eliminating all legal and social protections for transgender people, who they see not as people but as political scapegoats for everything these groups see as threatening to conservative values,” says Minter. “As a result, the Trump administration has rolled back virtually every federal policy protecting transgender people, and the Department of Justice has gone out of its way to advocate for virulently anti-transgender positions even in private litigation in which the government is not a party, as it did in Bostock.”

Minter points out that this proposed rule disregards the Supreme Court’s ruling in Bostock v. Clayton County, which came down last month. That ruling held that discrimination against transgender people is sex discrimination, which protected under Title VII of the Civil Rights Act of 1964. “The proposed rule directly conflicts with that ruling,” he says. “If HUD finalizes it, it will be challenged and struck down.”

But if the rule is finalized, there stands to be so much harm done until it can go through the legal process of challenging and striking it down. The country is facing unprecedented levels of unemployment and is on the verge of an eviction crisis. “The Trump administration’s decision to target an already vulnerable minority group in the middle of a global pandemic,” Minter says, “is irrational from a public policy perspective and morally grotesque.”

A 60-day comment period will open in the next few days. Branstetter says that "the number one thing transgender people, allies, and anyone who recognizes the lack of humanity in this action can do" is leave a public comment opposing this rule. By federal law, the department has to consider every comment and every strain of argument against the rule that's put forth. They may choose to finalize the rule anyway, but Branstetter says that "the spurious logic they use" often serves as evidence in litigation and legally challenging the rule.

The public comment is being led by True Colors United under the hashtag #HousingSavesLives. “Housing is a human right," Gregory Lewis, Executive Director & CEO of Cyndi Lauper’s True Colors United, said in a statement. "The Trump Administration’s proposal to weaken the Equal Access Rule threatens the rights of transgender Americans and would make shelters less safe for those most impacted by homelessness."