The Obama-era rule “protects the rights and safety of transgender and gender-nonconforming people in certain HUD-funded programs,” said a HUD official, who spoke on the condition of anonymity because of agency ground rules for the press call. And although the mandate that shelters recognize gender identity has been in effect since 2016, “under the previous administration, HUD did not commit to fully implementing or enforcing it,” the official said.
HUD had implemented an equal access rule in 2012 that barred federally funded housing programs from discriminating on the basis of sexual orientation or gender identity. In 2016, the agency amended its definition of gender identity to take into account the difference between actual and perceived gender identity and clarified that sex-based discrimination could be motivated by perceived nonconformity with gender stereotypes.
The change was meant to protect transgender people from discrimination — and danger — at homeless shelters because they are often denied access to an emergency shelter that corresponds to their gender identity. Transgender people already face disproportionately high rates of homelessness, HUD officials said.
But the Trump administration in 2017 removed guidance on how shelters should comply with the equal access rule. Ben Carson, the HUD secretary at the time, introduced a proposal to allow shelters to deny transgender people admission on religious grounds, or force transgender women to share bathrooms and sleeping quarters with men.
Carson had angered agency staff and civil rights advocates when he expressed concern during an internal meeting at HUD’s San Francisco office in 2019 about “big, hairy men” trying to infiltrate women’s shelters.
Carson on Thursday pushed back against the Biden administration’s characterization that his proposal was discriminatory.
“I cannot understand how the Biden administration thinks that keeping men out of a battered women’s shelter is discriminatory," Carson said in statement to The Washington Post. "It was a proposed rule that ensured equal rights were afforded, not extra rights. That concept appears to be lost on the Biden administration in more ways than one.”
The rule proposed under Trump would have allowed shelters to “take steps to verify people’s sex at birth, and to turn people seeking shelter away if the shelter decided that the person’s gender did not match their criteria for entry,” the Biden HUD official said.
Such a rule would have opened the door for shelters to subject people to “inappropriate, traumatic and intrusive inquiries, deny them accommodations, and expose them to increased risks of assault and harassment,” the official said.
Transgender advocate Gillian Branstetter, spokeswoman for the National Women’s Law Center, said the proposal was "one of the cruelest attempts the Trump administration had made against trans rights,” given that transgender people who face homelessness are more likely to encounter violence.
“We’ve seen a number of encouraging signs from the Biden administration in that they are willing and eager to put trans rights front and center as a priority,” Branstetter said. “Having not just an active shelter program but also affordable, accessible housing would certainly be the next step that I would like to see from Secretary Fudge.”
Thursday’s move, the latest reversal by the Biden administration of yet another Trump attempt to roll back civil rights protections, comes more than two months after HUD expanded fair housing protections for LGBTQ people by committing to investigate complaints of discrimination based on sexual orientation or gender identity.
President Biden had issued an executive order on his first day in office directing all federal agencies to take steps to combat discrimination against transgender people and implement a June ruling by the Supreme Court upholding that civil rights law protections include gender identity and sexual orientation.
“Today, we are taking a critical step in affirming HUD’s commitment that no person be denied access to housing or other critical services because of their gender identity,” Fudge said in a statement.