July 24, 2020

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

On July 24, HUD published in the Federal Register a 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 shared sleeping quarters) to establish a discriminatory admission policy that considers an individual’s sex and a range of other factors. HUD stated this change is needed to comport with its existing legal authority, to prioritize local control, to limit the burden on religious organizations operating shelters, and to limit regulatory burden generally.

This proposed rule would turn back requirements under the 2016 amendment to 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 proposed would remove the federal protection for transgender people and would instead defer 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. The proposed rule would “allow shelters that may already consider sex in admission and accommodation decisions (i.e., facilities that are not covered by the Fair Housing Act) to establish a policy that places and accommodates individuals on the basis of their biological sex, without regard to their gender identity.” The proposed rule provides that owners, operators, and managers of federally-funded single-sex shelters may request “information or documentary evidence” of the sex of individuals seeking shelter based on a “good faith belief that the person seeking access to the shelter is not of the sex which the shelter accommodates as determined under its policy.”  

Enterprise opposes HUD’s proposed rule and its intent to unwind existing federal protections against discrimination for transgender individuals experiencing homelessness. We urge our partners to submit comments to HUD opposing its proposed rule by the public comment period deadline, September 22, 2020. In response to the proposed rule, Enterprise's Senior Vice President for Public Policy Marion Mollegen McFadden said: “HUD’s proposal would make humane treatment of certain people optional. Under the last Administration, HUD carefully studied the issue and crafted the rule to ensure that it 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 – and dignified treatment – 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. 

On May 17, 2019, the House of Representatives 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. Furthermore, last 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. 
 

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