ERC Opposes HUD’s Proposed Change to Equal Access Rule
By Nick Adjami
September 22, 2020
The Equal Rights Center (ERC) has submitted a comment to the US Department of Housing and Urban Development (HUD) urging the agency to withdraw its proposed rule change regarding transgender people’s access to HUD-funded homeless shelters. The proposal would undermine the agency’s own 2016 “Equal Access” rule, which explicitly mandated that shelters grant equal access to facilities and services in accordance with an individual’s gender identity.
Prior to the release of the 2016 guidance, the ERC, working with the Center for American Progress, had investigated the degree to which transgender homeless women were able to access shelter in accordance with their gender identity, and found that only 30 percent of shelters tested were willing to house the transgender women test callers appropriately. One in five shelters outright refused to serve transgender women. Of transgender people who are able to access shelter, the 2015 Transgender Survey found that 52 percent were verbally harassed, physically attacked, and/or sexually assaulted because of their gender identity. With this in mind, HUD should recommit to protecting homeless transgender people instead of further endangering their safety with discriminatory rulemaking.
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Dear Office of General Counsel:
I am writing on behalf of the Equal Rights Center (ERC) in response to the Department of Housing and Urban Development’s (HUD) proposed rule change published in the Federal Register on July 24, 2020 (RIN 2506-AC53; HUD Docket No. FR-6152-P-01) entitled, “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs.” We urge that this proposed rule change be withdrawn in its entirety.
The Equal Rights Center is a national non-profit civil rights organization that identifies and seeks to eliminate discrimination in housing, employment, and public accommodations, both in our home community of Washington, DC and across the nation. The ERC is the only private fair housing organization dedicated to serving the entire Greater Washington, DC region, assisting individuals in the area who believe they have experienced housing discrimination. The organization also prepares requests for reasonable accommodations and modifications and helps victims of housing discrimination file administrative complaints.
Over our 37-year history, we have responded to thousands of complaints of housing discrimination, assisted victims of discrimination with obtaining justice, and played a vital role in holding entities that engaged in illegal discrimination accountable. In 2019 alone we conducted 143 fair housing tests, completed 95 fair housing presentations, and responded to 345 reports of discrimination. As such, we have worked closely with homeless and transgender individuals and, as such, are familiar with many of their needs. Paramount among those needs is access to safe shelter free from discrimination.
The Proposed Rule would strip protections for transgender and gender non-conforming people seeking HUD-funded shelter and is rooted in harmful and dangerous stereotypes about transgender persons, particularly transgender women. HUD’s dangerous proposal would allow temporary, emergency single-sex shelters to ask someone to provide evidence of their sex “based on a good faith belief” that the person seeking shelter is not of the biological sex that the shelter serves. Adopting this “good faith belief” approach, as opposed to simply accepting someone’s assertion of their own gender identity, invites sex stereotyping and invasive questioning by program staff.
Moving forward with this proposed rule change in the midst of a pandemic is particularly egregious and cruel. The COVID-19 crisis has caused massive unemployment, making it difficult for millions of Americans to pay rent. LGBTQ+ renters are especially vulnerable. A study by the Human Rights Campaign found that 30 percent of LGBTQ+ respondents have had their work hours reduced, compared to 22 percent of the general population. Similarly, 11 percent of LGBTQ+ people have asked for rent delays compared to eight percent of the general population. Many renters have been evicted and put at risk of becoming homeless, and many more may become homeless as the pandemic continues and rent relief remains scarce. It is of utmost importance that these newly homeless individuals and families have access to shelter, both for their own safety and to curb the spread of the coronavirus – transgender people are no exception. By limiting transgender persons’ access to safe and clean shelters, HUD’s rulemaking will create additional barriers for individuals to safely physically distance and self-isolate. In a pandemic, safe shelter access is not only a dire personal need but a matter of public health.
In early 2016, the Equal Rights Center and Center for American Progress published the results of a study (submitted with this comment) investigating the degree to which transgender homeless women were able to access shelter in accordance with their gender identity, as well as the types of discrimination and mistreatment they faced in the process. We conducted telephone tests of 100 shelters across four states and found that only 30 percent were willing to house the transgender women test callers appropriately. One in five shelters outright refused to serve transgender women.
This investigation was conducted prior to HUD’s publication of the “Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs” rule. The 2016 “Equal Access” rule explicitly mandated that shelters grant equal access to facilities and services in accordance with an individual’s gender identity. This guidance served to increase transgender women’s ability to access shelter free from discrimination. HUD’s newly proposed rule would undo this progress and facilitate an environment where, once again, only 30 percent of shelters properly accommodate transgender women, or worse.
The proposed rule change assumes that transgender women are a threat to cisgender women, but that is not true. Research shows that transgender people are the victims, not the perpetrators, of alarmingly high rates of violence. The 2015 Transgender Survey found that, of transgender people who had accessed a homeless shelter within the past year, 52 percent were verbally harassed, physically attacked, and/or sexually assaulted because of their gender identity. With this in mind, HUD should recommit to protecting transgender people from violence, instead of perpetuating a false and dangerous narrative that paints them as a threat.
In summary, the proposed rule change is rooted in harmful stereotypes and would further endanger homeless transgender people, an already extremely vulnerable population. There is no “good faith” in discrimination. We urge HUD to immediately withdraw its current rule change proposal and dedicate its efforts to mitigating the current effects that COVID-19 has had on housing stability. The country is in the midst of an unprecedented economic, health, and housing crisis. The administration should not be devoting scarce agency resources to facilitating discrimination and perpetuating stereotypes.
Thank you for considering our comments on the proposed rulemaking.
Equal Rights Center
 Human Rights Campaign Foundation. 2020. The Economic Impact of COVID-19 on the LGBTQ Community. Retrieved September 7, 2020, from https://assets2.hrc.org/files/assets/resources/COVID19-EconomicImpact-IssueBrief-042220.pdf.
 National Center for Transgender Equality. 2016. The Report of the 2015 U.S. Transgender Survey. Retrieved September 7, 2020, from https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf.