HUD Appears to Defy Bostock Ruling with Anti-trans Rule for Homeless Shelters

In apparent defiance of the recent U.S. Supreme Court ruling against anti-LGBTQ discrimination, the Trump administration has announced plans to change Obama-era regulations to allow homeless shelters to refuse to house transgender people consistent with their gender identity.

Secretary of Housing & Urban Development Ben Carson announced in a statement Wednesday the plan would allow homeless shelters to voluntarily establish policies on the admission of transgender people.

“This important update will empower shelter providers to set policies that align with their missions, like safeguarding victims of domestic violence or human trafficking,” 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. HUD also wants to encourage their participation in HUD programs. That’s exactly what we are doing with this rule change.”

In 2016, the Obama administration under then-Secretary of Housing & Urban Development Julian Castro updated the Equal Access Rule, which had been interpreted in 2012 to bar anti-LGBTQ discrimination in government-subsidized homes, to require homeless shelters with single-sex facilities to house transgender people consistent with their gender identity.

But the Trump administration proposal, according to a 28-page proposed rule being circulated among congressional committees, seeks effectively to undo those Obama-era regulations.

The proposal would purportedly preserve the 2012 Equal Access Rule barring anti-LGBTQ discrimination in federally-funded housing programs, but “require any determination of sex by the shelter provider to be based on a good faith belief, and require the shelter provider to provide transfer recommendations if a person is of the sex not accommodated by the shelter and in some other circumstances.”

“For example, under the proposed rule, if a single-sex facility permissibly provides accommodation for women, and its policy is to serve only biological women, without regard to gender identity, it may decline to accommodate a person who identifies as female but who is a biological male,” the proposed rule says. “Conversely, the same shelter may not, on the basis of sex, decline to accommodate a person who identifies as male but who is a biological female.”

LaLa Zannell, Trans Justice Campaign Manager for the American Civil Liberties Union, said in a statement the proposal is cruel amid high unemployment rates during the coronavirus crisis.

“Housing Secretary Ben Carson: Where should the Black and Brown trans women who have faced discrimination at work and violence in their homes and the streets go after we have been turned away from shelters?” Zannell said. “Shelters funded by taxpayers should be open to all — period. We should all tell the Trump administration that this proposed rule is not only wrong but deadly.”

The proposal justifies the change by asserting the 2016 Obama-era regulations exceeded authority under the Fair Housing Act, minimized local control, imposed regulatory burdens and burdened shelters with deeply held religious convictions, referring to a 2017 memo from former U.S. Attorney General Jeff Sessions requiring U.S. agencies to accommodate religious objections in regulations.

“In some faith traditions, sex is viewed as an immutable characteristic determined at birth,” the proposal says. “Thus, legally compelled accommodation determined on a basis in conflict with the provider’s beliefs could violate religious freedom precepts.”

Further, the rule draws on privacy issues, a concern cited by opponents of allowing transgender people to use the restroom consistent with their gender identity, as a reason for the change.

“HUD does not believe it is beneficial to institute a national policy that may force homeless women to sleep alongside and interact with men in intimate settings — even though those women may have just been beaten, raped, and sexually assaulted by a man the day before,” Carson said.

The proposal concedes HUD “is not aware of data suggesting that transgender individuals pose an inherent risk to biological women,” but adds “there is anecdotal evidence” non-trans women may fear being housed with transgender women.

Sharita Gruberg, senior director for the LGBTQ Research and Communications Project at Center for American Progress, said in a statement the proposal “is targeting transgender people for discrimination.”

“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,” Gruberg said.

According to a study from the Center for American Progress and Equal Rights Center before the 2016 regulations went into effect, only 30 percent of shelters tested were willing to appropriately house transgender people, and 1 in 5 outright refused to provide them with shelter.

The proposal appears to conflict with the recent ruling from the U.S. Supreme Court in case of Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act of 1964. Although that ruling pertained to employment, not housing, the logic in the decision should affect the Fair Housing Act, which bans discrimination on the basis of sex in housing, and any regulations emanating from the U.S. government on that statute.

Neither the Justice Department, which has been charged with implementing the Bostock decision, nor the Department of Housing & Urban Development responded to the Washington Blade’s request to comment on how the proposal is consistent with the Supreme Court ruling.

Mara Keisling, Executive Director of the National Center for Transgender Equality, said in a statement the proposal “flies in the face of the Bostock Supreme Court ruling, so it will not stand, but it could still put people in danger.”

“Discrimination and criminalization have left countless transgender people, particularly transgender people of color, exposed to violence and abuse, all while family rejection can leave transgender youth with nowhere to turn,” Keisling said. “Secretary Carson is contradicting the very mission of his department by trying to make shelters less safe for those who need them and further endangering the lives of marginalized people. We will fight this rule like trans lives depend on it because trans lives do depend on it.”

The submission of the proposed rule is the last step in the process before publication in the Federal Register. A 60-day comment period for the rule is expected to start in the coming days.

HUD had previously announced it would gut the 2016 rule for homeless shelters with a rule allowing homeless shelters to refuse to house transgender people based on religious beliefs or privacy issues, but no document until now had reached this point in the rule-making stage, according to the American Civil Liberties Union.

The White House didn’t respond to the Washington Blade’s request to comment on whether President Trump is OK with the rule and think it’s consistent with the Supreme Court’s decision in the Bostock case.

Story courtesy of the Washington Blade.