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Democrats in the U.S. House and Senate are moving to undo a new rule advanced by the Trump administration that couldrequire transgender women to stay in men’s homeless shelters, saying it violates the recentU.S. Supreme Court decision affirming federal protections against discrimination for LGBTQ people.
The proposed change affects the current Equal Access Rule from the Department of Housing and Urban Development, and it would allow shelter operators to declare the gender of homeless individuals looking to stay in sex-segregated facilities. LGBTQ advocates worry that vulnerable transgender or nonbinary people would avoid shelters as a result, potentially driving them to sleep in unsafe conditions at a time when the coronavirus pandemic raises the prospect that many more people will soon join the ranks of the unhoused. Homelessness is aparticularly serious problem among transgender individuals:One in five will be homeless at some point in their lives.
“No one should be discriminated against, especially not at such a time of dire need,” said Illinois Representative Mike Quigley, during a press call. “The individuals being targeted in this rule already face the possibility of being forced to sleep on the street. This policy is just staggering in its cruelty and capriciousness.”
Democrats have contested the issue since Housing Secretary Ben Carsonfirst proposed changing the Equal Access Rule in 2019. Virginia Representative Jennifer Wexton, whocalled on Carson to resign last year after he testified before Congress that he did not anticipate changing the rule — the day before his agency announced otherwise — introduced a bill last year to prevent the secretary from implementing the rule.
Wexton led a group of 145 members of Congress, including 23 senators, whosubmitted a letter on Thursday to the Department of Housing and Urban Development as a public comment objecting to the new rule. In the letter, the Democrats challenge the Trump administration’s argument that the new rule reflects safety concerns or undue burdens for religious organizations that operate shelters. There’s no evidence that allowing transgender women to stay in women’s shelters puts others at risk, Democrats say, or that any religious organizations made any complaints under the Obama-era Equal Access Rule.
“The rule change is a political narrative in search of a problem,” said Pennsylvania Representative Mary Gay Scanlon during the call. “We know that there’s no data to support that transgender folks pose a danger in our homeless system.”
In a separate effort to prevent the rule change, Quigley introduced an amendment to an appropriations bill last week that would defund the rule before it can be implemented. New York Representative Alexandria Ocasio-Cortez has taken a similar tack toblock two new Trump rules on housing segregation and discrimination before they can take effect. It’s doubtful that Congress will pass the appropriations bill before the November election.
Back in June, the Supreme Court ruled in Bostock v. Clayton County, Georgia that discrimination against people for their gender or sexual orientation is unconstitutional. Wexton and California Representative Maxine Waters highlighted the decision in aJune 29 letter to Carson, saying that any change to the Equal Access Rule would run afoul of the court’s decision in Bostock.
Carson replied with a letter to say that there’s no conflict: Shelters are not considered housing under the Fair Housing Act, which means Bostock doesn’t apply. Instead, he writes, an individual’s sex is a relevant factor with regard to sex-segregated shelters, and shelter operators have an obligation to consider the needs of their program residents when admitting people. “Our proposed rule prohibits discrimination based on transgender status as such,” Carson writes. “Everyone deserves equal rights, but in ensuring such is received, we must consider the whole picture.” (The agency did not respond to a request for comment.)
Sasha Buchert, senior attorney at Lambda Legal, an LGBTQ civil rights group, says that HUD’s assessment doesn’t line up with the applicable case law. “There are at least two circuit courts that have held that shelters are considered dwellings under the Fair Housing Act, and therefore subject to that,” she says. “Their analysis is just wrong.”
Advocates for transgender and nonbinary communities worry that vulnerable people seeking shelter services could be treated to degrading situations — or worse still, the danger of sleeping on the street. Carson previously drew fire for describing“big, hairy men” seeking access to women’s shelters; at Vox, Katelyn Burns reported earlier this month that the draft rule says thatstaff at shelters may consider physical characteristics such as height or facial hair to determine a person’s gender before admitting them into a shelter.
Such a standard, according to Buchert, “sends a dangerous message to shelters that they’re able to sex-stereotype people who come through their doors, and decide who is sufficiently male and who is sufficiently female.”
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