HUD’s proposed shelter rule: better, but leaves many women unprotected

The U.S. Department of Housing and Urban Development (HUD) has proposed to repeal portions of its 2016 regulation dubbed the “Equal Access” rule, which had mandated that individuals be accommodated in single-sex emergency shelters based on their self-declared “gender identity.” Here is our initial assessment of the proposal.

The proposed new HUD shelter regulation

HUD’s proposal to repeal its 2016 mandate is great news for facilities that were set up to provide woman-centered, women-only services to those who need and want them. When the proposed rule is finalized, it will allow women’s shelters to determine eligibility based on sex, without regard to the person’s claimed “gender identity” or “transgender status.”

The proposed rule would explicitly allow single-sex shelters to deny eligibility “based on a good faith belief that an individual. . . is not of the sex” the shelter is set up to serve. This means that a shelter could “request evidence of the individual’s biological sex,” and could also employ “reasonable considerations [that] include, but are not limited to a combination of factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics which, when considered together, are indicative of a person’s biological sex.” (Whether these factors are reasonable ones for determining sex is a fair question; we will be working to press HUD to allow flexibility and judgment on the part of shelter operators, while also addressing the risk that women could be wrongly excluded from a shelter based on sex stereotyping regarding her manner of dress, facial hair, or other physical features.)

Contrary to some claims by gender activists, the proposed regulation does not allow shelters to arbitrarily refuse accommodation to people who identify as transgender or claim some other form of “gender identity”; such individuals are simply covered by the same rules of eligibility that apply to everyone else. If an individual seeks shelter but the shelter determines they are not of the sex the shelter is set up to serve, the proposed regulation would require the shelter provider to use a centralized or coordinated system to make a transfer recommendation to a shelter that the individual is eligible for.  

But the proposed regulation also contains some very worrying provisions. Although single-sex shelters are allowed  to operate truly as single-sex, “[n]othing in the proposed rule restricts shelters from maintaining a policy to determine the eligibility of an individual based on “gender identity.” This would mean that a woman may specifically seek emergency shelter from homelessness, rape, or other male violence in a facility that holds itself out as a “women’s shelter,” but may find herself placed in an accommodation next to a man who claims to have a feminine “gender identity.”

Some state and municipal laws can also be interpreted to allow or require emergency shelter eligibility based on “gender identity,” and the proposed rule says that policies adopted by HUD facilities must be consistent with those state and local requirements. Further, some states allow individuals to legally falsify their sex-markers on official identification documents–including even birth certificates–based on “gender identity” or some other variety of legal fiction for officially recognizing an individual’s claim to have undergone a “sex change.” Given the way state and federal agencies in the U.S. have different scopes of jurisdiction, which sometimes overlap and sometimes do not, it’s not clear that HUD has any obligation to enforce such state or local requirements through its own regulation. Unfortunately, it’s not clear that HUD has the authority to relieve women’s shelters from these state-level “gender identity” mandates, either.

Background on the underlying 2016 HUD regulation

It’s important to note that the proposed regulation applies only to a limited type of dwelling: temporary and emergency shelters that are not covered by the Fair Housing Act and therefore are not prohibited from discriminating on the basis of sex.

As explained in the proposed regulation:

“The Congress has prohibited discrimination on the basis of sex in dwellings covered under the Fair Housing Act. But it has not acted to prohibit consideration of sex in temporary and emergency shelters, many of which do offer sex-specific housing or sex-specific areas of housing (such as facilities with physical limitations or configurations that have shared sleeping quarters or bathing areas).”

These types of shelters are allowed to, and often do, have communal sleeping areas or communal bathing facilities so they can serve a larger number of individuals notwithstanding the physical limitations at the shelter. Shared spaces generally work in a women’s shelter, where women are unlikely to assault or violate one another.

But in 2016, under the Obama administration, HUD mandated that individuals “who do not identify with the sex they were assigned at birth” be given access to certain programs, benefits, services, and accommodations “in accordance with their gender identity.” “Gender identity” was defined under the rule to mean “the gender with which a person identifies, regardless of the sex assigned at birth.”

To facilitate this new “gender identity” mandate, the 2016 regulation repealed a prior regulation that expressly allowed emergency shelters to make inquiries about an applicant’s sex. The 2016 regulation also prohibited shelters from requesting “documentary, physical, or medical evidence” of a person’s claimed “gender identity.” In practical effect, it mandated sex self-ID.

The 2016 regulation went even further in placing women at risk while imposing serious liabilities on struggling shelters. On one hand, it expressly rejected language that would allow shelter providers to make a “written case-by-case determination on whether an alternative accommodation for a transgender individual would be necessary to ensure health and safety,” specifically where the shelter facilities “have shared sleeping quarters or shared bathing facilities.” HUD’s reasoning had nothing to do with considerations of health and safety, however; HUD reversed its initial proposal to allow for “alternative accommodation” because it wanted to avoid the impression that “the very presence of transgender individuals was a cause for health and safety concerns.” Thus, in order to avoid causing offense to people who claim to be transgender, HUD ignored factually-grounded concerns about the threats men pose to women in shared sleeping quarters or shared bathing facilities. 

This placed a two-fold burden on shelters. First, shelter providers had to expose themselves to liability, and expose their clients to increased risk of violence or invasion of privacy, by accommodating men in facilities or programs that had been set up to provide single-sex or sex-specific accommodations or services for women. Then, under HUD’s 2016 regulation, “shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities must take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by residents or occupants.” No funding was provided to enable these additional privacy protections that were made necessary by the “gender identity” mandate itself. This likely led some shelter providers to give up whatever HUD funding they were eligible to recieve, in order to keep women and girls safe in single-sex or sex-specific emergency shelter arrangements. 

In May 2017, WoLF joined with Hands Across the Aisle to file a petition for rulemaking with HUD asking the agency to repeal the portions of its 2016 regulation mandating that women’s shelters accommodate men based on their self-declared “gender identity.” We argued that the prior administration had ignored the disproportionate harmful effects on black and Hispanic women, poor women, and women who are victims of domestic violence, while silencing objections and making objective reporting about the harmful effects of the rule impossible or risky for HUD-funded shelters. Today’s rule, if finalized, would partially address our concerns.

WoLF’s initial impressions of the proposed regulation

WoLF is happy that HUD has proposed to repeal its mandate requiring that single-sex or sex-specific shelters and services determine eligibility based on self-declared “gender identity.” We’re also pleased that the proposed regulation retains a prohibition against discrimination based on “actual or perceived sexual orientation . . . or marital status.”

At the same time, women can still be exposed to increased risks to safety and privacy, because the proposed regulation does nothing to prohibit shelters and programs from adopting “gender identity” policies by their own choice. We believe this will only encourage more shelters to hold themselves out as providing “single-sex” or “sex-specific” services for women, while in fact running mixed-sex facilities and services. Our own informal research indicates that single-sex women’s shelters and services in existence is already dwarfed in number by men’s and mixed-sex facilities. HUD should take measures to affirmatively encourage shelters designed specifically to provide women’s-only services for women who seek them.

Finally, we’re very concerned that HUD continues to use the concepts of “gender identity” and “transgender” in its regulation, as though these phrases describe a coherent status or objectively-identifiable group of individuals. These are vague phrases that describe subjective and highly contested concepts, adding nothing but confusion to the regulatory landscape. We intend to press HUD to eliminate this terminology from its regulatory language, and instead simply state that subjective beliefs about sex or gender are irrelevant when determining eligibility for single-sex or sex-specific services under federal rules.

What’s next?

It’s important that HUD hear from feminists and other allies to women. HUD is giving members of the public until September 22, 2020, to submit comments on the proposal. We’ll be making a future post with specific instructions for how to submit comments, along with talking points for anyone who wants a jump start on writing their own letter.

Please watch this space — it will be critical that HUD hear from women about the importance of single-sex and sex-specific emergency shelter services!.

If you have experience working in or using single-sex or sex-specific emergency shelters or services, and are able to talk with a WoLF volunteer about your experience, please reach out to us at [email protected] Your correspondence will be kept strictly confidential.