May 23, 2019

Enterprise Opposes HUD Proposal That Would Roll Back Transgender Protections at Federally Funded Homeless Shelters

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On May 22, HUD announced a forthcoming proposed rule that would roll back protections for transgender people experiencing homelessness by allowing federally-funded homeless shelters whose facilities are segregated by sex (such as bathrooms and sleeping quarters) to establish an admission policy that considers an individual’s sex and a range of other factors.

This proposed rule would turn back requirements under the 2012 Equal Access Rule which aimed to ensure that HUD’s housing programs would be open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status. As it currently stands, the Equal Access Rule requires that owners, operators, and managers of federally-funded shelters "provide equal access to programs, benefits, services, and accommodations in accordance with an individual's gender identity." 

HUD’s proposal would remove that federal protection for transgender people and would instead leave it up to local decision making, thereby allowing a single-sex or sex-segregated homeless shelter to deny admission to the facility due to an individual’s sex as reflected in official government documents. A summary of the forthcoming proposed rule states: “The proposed rule permits Shelter Providers to consider a range of factors in making such determinations, including privacy, safety, practical concerns, religious beliefs, any relevant considerations under civil rights and nondiscrimination authorities, the individual’s sex as reflected in official government documents, as well as the gender which a person identifies with. The proposed rule does not dictate a required basis for making determinations other than that they be consistent with an overall policy.”

Enterprise opposes HUD’s proposal and its intent to unwind existing federal protections against discrimination for transgender individuals experiencing homelessness. In response to the proposed rule, Senior Vice President for Public Policy Marion Mollegen McFadden said:

“HUD’s proposal would make humane treatment of certain homeless people optional. Under the last Administration, HUD carefully studied this issue to ensure that the current rule would be workable for all residents of shelters. Transgender people face increased risks of homelessness and too often find themselves in need of shelter. This proposal would remove protections from the people who need them most.”

The Washington Post reported that one in three transgender people have experienced homelessness—including one in eight in the last year alone—and that transgender people experiencing homelessness already face high rates of discrimination and mistreatment when seeking a shelter. A report from the Chapin Hall at the University of Chicago found that LGBTQ young adults had a 120 percent higher risk of reporting homelessness compared to youth who identified as heterosexual and cisgender. According to the Human Rights Campaign, estimates show that LGBTQ youth comprise up to 40 percent of the total unaccompanied homeless youth population, even though they make up five to 10 percent of the overall youth population. 

At a House Financial Services Committee hearing on May 21, Representative Jennifer Wexton (D-VA-10) asked Secretary Carson to assure the Committee that HUD does not have any current or future plans to eliminate the Equal Access Rule in rulemaking. Secretary Carson responded that he would not speak to what HUD would do in the future but when further pressed by Representative Wexton if he is anticipating making changes, Secretary Carson replied, “I am not currently anticipating changing the rule.” HUD announced the proposed rule the very next day.

Earlier today, Representative Wexton introduced legislation that would direct HUD not to “implement, administer, enforce, or in any manner make effective” this proposed rule, or “any final rule based substantially on such proposed rule.” 

Meanwhile, the draft Fiscal Year 2020 Transportation, Housing and Urban Development, and Related Agencies (THUD) funding bill—released by the House Appropriations Committee on May 22— includes a provision that would prohibit HUD from making any changes to the 2012 Equal Access Rule.

On May 17, the House passed the Equality Act, which would amend the Civil Rights Act of 1964 and other civil rights laws to include sexual orientation and gender identity as protected classes. The Equality Act would prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, jury service, access to credit, federal funding assistance, and education. Earlier this year, Senators Tim Kaine (D-VA), Susan Collins (R-ME), and Angus King (I-ME) introduced the Fair and Equal Housing Act of 2019, which would add gender identity and sexual orientation to the classes protected from discrimination under the Fair Housing Act

Enterprise supports fair and equal access to housing and the expansion of Fair Housing Act protections to explicitly prohibit discrimination on the basis of source of income, veteran status, sexual orientation, gender identity, or marital status