Under HUD’s proposed new rule, details of which were obtained by The Washington Post, operators of single-sex shelters may consider someone’s biological sex — instead of how they self-identify — in making placement and accommodation decisions. They could “determine an individual’s sex based on a good faith belief that an individual seeking access … is not of the sex, as defined in the single sex facility’s policy, which the facility accommodates,” the proposed rule says.
A person denied entrance to a shelter on the basis of this policy must receive a transfer recommendation to another facility, the rule says. Shelter operators could also choose to continue determining someone’s sex on the basis of how the person self-identifies. But whichever approach is chosen must be applied uniformly and consistently, the rule says.
The proposed rule, being circulated among lawmakers on Capitol Hill, is the latest effort by the Trump administration to rewrite federal rules on how government programs provide for transgender people. The Department of Health and Human Services finalized a rule Friday that also emphasizes biological sex over how a person identifies.
That rule says HHS will enforce sex discrimination protections “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” It overturns another Obama-era rule that had adopted a broader interpretation of gender.
The administration’s moves have dismayed transgender rights advocates — who say the administration is systematically weakening protections for transgender people — while pleasing conservatives, who have raised concerns about women’s rights and religious freedom.
HUD Secretary Ben Carson had previously expressed concern about the impact on residents of female-only shelters when transgender women are allowed to share bathrooms and shower areas.
“I had heard from many women’s groups about the difficulty they were having with women’s shelters because sometimes men would claim to be women,” Carson wrote to staff in an email.
This latest proposed rule from his agency says HUD isn’t aware of data suggesting that transgender individuals pose an inherent risk to women. But it says there is “anecdotal evidence that some women may fear that non-transgender, biological men may exploit the process of self-identification under the current rule in order to gain access to women’s shelters.”
The rule cites a lawsuit against Anchorage, in which a faith-based shelter claimed that female residents said they’d rather sleep in the woods than alongside biological males. It also notes a pending civil complaint in Fresno, Calif., from nine homeless women who allege that a homeless shelter enabled sexual harassment because a male identifying as female entered a shelter and showered with women.
“HUD does not believe it is beneficial to institute a national policy that may force homeless women to sleep alongside and interact with men in intimate settings — even though those women may have just been beaten, raped, and sexually assaulted by a man the day before,” the rule says.