ROLLBACK OF HUD’S TRANSGENDER PROTECTIONS FAILS IN WANING DAYS OF TRUMP ADMINISTRATION

As the Trump Administration came to an end in January, so did efforts to roll back transgender protections under the U.S. Department of Housing and Urban Development’s (HUD) Equal Access Rule.

Southern Legal Counsel was among the organizations that issued statements protesting a rule HUD first proposed in the spring of 2019 that appeared to weaken the Equal Access Rule and its enforcement mechanisms, which require equal access to housing and homeless services for transgender and gender-non-conforming (TGNC) individuals. At the time, sex-segregated shelters could not refuse to admit TGNC persons and were required to house them according to their gender identity.

The rule change would have allowed sex discrimination against individuals who are transgender and others seeking shelter in single-sex facilities, and it would have allowed those managing the facilities to make biological sex determinations by assessing “factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics” of the shelter seeker.

The proposed change posed a threat to the nearly 30% of transgender individuals who have experienced homelessness, which in turn puts them at a heightened risk of violence, abuse, and exploitation.

In May 2019, after HUD made its initial notice regarding the rule, SLC led a coalition of Florida organizations in issuing a statement calling the proposed rule change “unnecessary and unlawful.” Later that year, SLC recruited a team of pro bono law firm attorneys to track HUD’s rulemaking process and prepare written comments for submission.

Then, in February 2020, SLC learned of a related proposed rule that would have allowed faith-based organizations that receive federal funds to refuse to serve individuals if doing so conflicted with the organization’s religious beliefs. SLC submitted comments that had been researched and drafted by the same pro bono counsel to HUD, objecting to the proposed rule change.

HUD published the proposed rule that would have rolled back the Equal Access Rule in July 2020. Again, SLC turned to its pro bono partners, who researched and drafted comments that were submitted on SLC’s behalf in September 2020. By the end of the required comment period, the federal government had received more than 66,000 public comments, the most ever received on a HUD rule.

HUD had not acted on the proposed rule by the end of President Trump’s term, and SLC does not anticipate that the Biden Administration will proceed with the proposed rule changes.