Trump Admin Proposes New Rule to Eliminate LGBTQ+ Housing Discrimination Protections, Force Homeless Shelters to House Trans Women with Men
The proposed rule, which aims to preempt state anti-discrimination laws, will repeal the Obama-era LGBTQ+ housing protections while also removing a ban on shelters inspecting trans people’s genitals.
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On Monday, the Department of Housing and Urban Development (HUD) released a proposed rule titled “Equal Access to Housing in Department of Housing and Urban Development Programs.” The rule, which aims to implement Trump’s executive order defining ‘sex’ as ‘immutable’ throughout federal regulations, would eliminate the federal gender identity and sexual orientation housing discrimination protections that were first implemented by the Obama administration in 2012 and expanded in 2016.
As part of this change, the rule would remove these protections from HUD “Community Planning and Development (CPD)-assisted programs, benefits, services, and accommodations,” which “include temporary and emergency shelter programs, such as the Emergency Solutions Grants program and the Housing Opportunities for Persons with AIDS (HOPWA) program” as well as various affordable housing initiatives.
Instead, the rule would force shelters that receive HUD funding to ensure that “an individual is placed, served, and accommodated in accordance with” their ‘biological sex.’ The proposal states that this will apply even in states with laws banning shelters from engaging in this behavior, as it will “preempt local laws that may conflict with these requirements for state or local entities” by conditioning federal funding—which most shelters receive—on these restrictions.
And the rule goes even further, stipulating that it will “allow a facility provider to ‘require reasonable assurances or evidence to establish a person’s sex.’” According to the rule’s text, this explicitly repeals the 2016 rule’s provision banning shelters from subjecting trans people “to intrusive questioning or asking them to provide anatomical information or documentary, physical, or medical evidence of their gender identity.” Worse, what constitutes “reasonable assurances or evidence” is left entirely up in the air, meaning the Trump administration will be removing language banning genital inspections while encouraging shelters to “establish a person’s sex.”
In other words, although the rule doesn’t force shelters to perform physical inspections of trans and gender non-conforming people, it will no longer stop them from doing so, either.
The Trump administration justifies this change in a few different ways. First, it claims “it is not beneficial to institute a national policy that forces homeless women to choose between sleeping alongside and interacting with men in other intimate settings or refusing emergency shelter or other facilities.” It then elaborates by saying that “requiring shelters to place biological males with homeless women in shared sleeping, bathroom, and other intimate settings continues to place them at risk of sexual harassment and assault and exacerbates prior traumas for many homeless women.” This idea that trans women pose a threat to homeless women is similar to the reasoning Republicans in 8 other states have employed in order to expand their bathroom bans to cover homeless and domestic violence shelters.
Next, it asserts that “requiring homeless shelters and other facilities to house individuals inconsistent with their sex reduces the amount of help available to homeless individuals because it imposes an unacceptable and potentially illegal burden on the religious exercise of many faith-based facilities.” Here, it attempts to hide behind the First Amendment, writing that “many faith traditions believe that sex is an immutable characteristic determined by a creator, that male and female are the only two sexes, and that it is wrong for a person to deny his or her sex.”
Finally, it leans on Trump’s Executive Order 14168, which “specifically directed HUD to prepare and submit for notice and comment rulemaking a policy to rescind the 2016 Rule in order to restore biological truth in the federal government.” The HUD additionally states that it “believes this rule would advance the President’s policy to ‘defend women’s rights and protect freedom of conscience.’” It’s worth noting that the definition of female used by the rule—”a person of the sex characterized by a reproductive system with the biological function of producing eggs”—is different from the definition established in EO 14168, meaning that the agency exercised its own independent judgment when making this rule. This could matter in court.
After these justifications, the HUD feigns empathy for trans people, writing that it “acknowledges that this rulemaking would result in denying individuals who claim a different gender identity than their sex being denied access to their preferred single-sex shelters or their preferred accommodations in other shelters.” Instead of having this concern meaningfully impact its policy, it instructs trans people to “find other shelter options that are not limited to a single sex or seek admission to a single-sex shelter consistent with their sex”—where they will be at a significantly higher risk of sexual violence.
Furthermore, it states that “this rulemaking would require some organizations to follow rules inconsistent with their beliefs regarding gender and sex, if they continue to use federal funds” but that it “has considered these potential impacts and believes they are outweighed by the factors discussed above.” Of course, it goes without saying that this also “imposes an unacceptable and potentially illegal burden on the religious exercise of many faith-based facilities,” as it will also apply to religious shelters that are supportive of trans people.
This isn’t the first time the Trump administration has removed discrimination protections for LGBTQ+ Americans, either. Already, the federal government has finalized rules removing gender identity and sexual orientation as protected classes in credit & lending, education, and sports along with proposing rules eliminating similar protections from foster care and refusing to enforce the gender identity employment protections created by the Supreme Court in Bostock v. Clayton County (2020).
But even then, this is different. According to the Williams Institute at UCLA, trans adults are 8 times more likely to experience homelessness than non-LGBTQ+ adults and almost 3 times more likely than non-trans LGBTQ+ adults. Thus, if this rule is finalized and upheld by courts, the Trump administration will be removing the social safety nets that trans people disproportionately rely on. It will actively place trans people with nowhere else to go at heightened risk of harassment, sexual assault, and violence. It’s needlessly cruel.
However, this fight isn’t over. When the proposal opens up for public comments tomorrow, we must make our voices heard. We must urge the Department of Housing and Urban Development to back down from this dangerous proposal or at the very least least soften it. It’s also worth noting that its broad and preemptive nature makes it especially vulnerable to a lawsuit. Hopefully, it isn’t allowed to stand.
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So... This means that if I'm without a place to rest my head for the night, I have to show my genitals at the door? And are there protections in place to keep me from being raped when I do so? Let's face it, this is part of the campaign not merely to stop trans people from receiving services, it's part of an extermination campaign. Genocide. Holocaust. How many people are going to die because they're not willing to submit to what amounts to sexual molestation in exchange for survival resources?
This is reminiscent of when the Federal Government under Woodrow Wilson spread segregation nationwide by forcing it through Federal facilities, bypassing state laws. It's the new Jim Crow.