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Commentary Human Rights

Trans People Are Terrified About the Trump Administration’s New Housing Rule

Carl Charles

Accessing emergency housing could depend on a person’s ability to pass a "gender test," which ultimately harms everyone experiencing housing instability.

For more housing justice coverage, check out our Special Report.

The Trump administration waited just one day after the end of a subdued Pride Month before launching its latest attack on transgender people. And like so many of the administration’s assaults on trans rights and bodies, this one is mired in sex stereotypes and gender panic.

This time, the administration has targeted trans people’s access to emergency housing and, if it’s successful, the effects will be devastating.

On July 1, the U.S. Department of Housing and Urban Development (HUD) announced its intention to gut the federal rule protecting trans and gender nonconforming people’s access to emergency housing shelters.

When the Obama administration created the Equal Access Rule in 2012, it required HUD-assisted housing to be made available without regard to sexual orientation or gender identity. But despite persistent calls from trans advocates and community members, HUD declined to explicitly guarantee that trans people would have access to shelters in accordance with their gender identity. Instead, the department said it would study the issue to see if such a policy was warranted. Four years later, HUD announced that explicit protections were necessary; in September 2016, it adjusted the rule to ensure trans people could access single-sex shelters in accordance with their gender.

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What HUD recognized, and what advocates have been saying for years, is that trans people face immense discrimination in accessing nearly every part of society, including education, housing, health care, and employment. Because of this widespread discrimination, 29 percent of trans people live in poverty, and 1 in 5 trans people in the United States will be homeless at some point in their lifetimes, making access to temporary or emergency shelters incredibly important.

Despite this serious need for safe and affirming shelters, more than half of the trans people surveyed who had used a shelter reported being harassed, while 25 percent reported being physically assaulted, and 22 percent reported sexual assault. These sobering statistics underscore the significance of the 2016 Equal Access Rule in both acknowledging and beginning to address disparate realities for trans people experiencing housing instability.

So, imagine the whiplash felt by advocates and community members when HUD announced it was moving forward with rumored changes that would gut the Equal Access Rule entirely.

It’s hard to comprehend the utter lack of empathy required to endorse housing discrimination in the middle of a global health pandemic, but it is 2020, after all. The updated rule would let shelter operators establish any policy whatsoever for admitting (or not) people whose “gender identity does not match their biological sex.” The announcement highlighted that these changes would “better accommodate the religious beliefs of shelter operators.” I can’t think of something we need less than shelter operators using their “faith” to deny emergency housing to trans people during national health and economic crises.

This government-sanctioned discrimination is not particularly surprising from HUD Secretary Ben Carson, who has not tried to hide his bigotry toward transgender people. What is deeply troubling, however, is that his personal views inform the policies of the federal housing agency he oversees—an agency tasked with distributing billions of taxpayer dollars for housing, including temporary and emergency shelters. This terrifying reality surfaced in September 2019, when, in a meeting with over 50 HUD staff, Carson referred to trans women as “big, hairy men” who might sneak into women’s shelters.

And then, just two weeks ago, Vox received leaked text of HUD’s changes to the Equal Access Rule: The proposed rule would explicitly allow single-sex shelter operators to “use a visual appraisal of a woman’s appearance” for the purposes of shelter admission.

This proposed rule, which the agency published last week, really is as disturbing as it sounds. It specifically says shelter operators can consider “factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics that are indicative of a person’s biological sex.” The rule falls short of permitting physical exams, but it does allow operators to request other “evidence,” like a government-issued ID, though for now “lack of government identification alone cannot be the sole basis for denying admittance on the basis of sex.”

While trans people are depressingly accustomed to cisgender people in positions of power evaluating our gender to decide whether or not to provide us with lifesaving medical care or other emergency services, we are not the only ones who will be affected. The broad contours of this rule mean that cisgender women and men trying to access shelters will also be subject to physical and stereotypical gender assessments. Should this rule go into effect, anyone whose gender identity or presentation falls outside of binary stereotypes could be denied shelter access.

Ultimately, this proposed rule threatens to harm everyone experiencing housing instability, which is often a time of crisis and uncertainty. It is deeply shameful that while at their most vulnerable, people of all gender identities and expressions will be subjected to discrimination not only sanctioned, but encouraged, by the federal government.

But all is not lost. As with all federal rule changes, the public has 60 days starting from July 24 to submit comments that reject the rule and outline its troubling implications. The administration must then consider those comments before issuing its final rule. And while the administration has so far shown a willingness to bend over backward to accommodate bigotry, advocating against this rule matters: HUD has audaciously asked the public to weigh in on what physical characteristics a shelter operator should be able to use to judge a person’s “biological sex.” Imagine anyone telling you that you don’t look masculine or feminine enough to have a roof over your head for a night. It’s as outrageous as it is cruel, and the administration’s efforts to subject trans folks—and anyone in need of emergency housing—to this kind of gender inquisition must not succeed.

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