The COVID-19 crisis has increased America’s already considerable need for safe, accessible shelters. Many people struggling with homelessness have relied on pedestrians for panhandling income and on restaurants for donations of unused food, and are now unable to rely on either. And many people in abusive relationships have found themselves trapped at home with their abusers 24 hours a day, and in desperate need of an alternative living space. There have been reports of domestic violence calls increasing as the COVID-19 crisis has worsened.
So this seems as good a time as any to point out that many domestic violence shelters and homeless shelters will flat-out reject potential residents for being transgender and/or non-binary – or place them in separate, isolated housing. For example, a trans woman attempting to escape an abusive relationship might be told that she can’t stay at a women’s shelter, because the people running the shelter don’t consider her to be a woman.
In 2016, the Center for American Progress and the Equal Rights Center tested 100 homeless shelters in 4 different states, to see If they would offer services to trans women who contacted them about the availability of shelter. They found that only 30 of the 100 shelters expressed a willingness to house trans women with other women.
For example, one trans woman was told that she could only stay at a particular shelter if she’d had “surgery.” Another woman called a shelter and was immediately hung up on after revealing that she is trans. Many of the shelters said that they would only be willing to house trans women in isolation. Others insisted on housing trans women with men.
Current Efforts to Permit Discrimination Based on Gender Identity
The Department of Housing and Urban Development (HUD) has an Equal Access Rule, which requires that HUD-sponsored programs offer equal access to individuals in accordance with their gender identity. However, not all shelters receive HUD funding – and not all HUD-funded shelters comply with their federal obligations.
In the past several years, the Trump Administration has made efforts to pave the way for shelters to collect federal money while openly discriminating against trans people. The Department of Housing and Urban Development (HUD) proposed a rule in 2019 that would permit federally funded shelters to base accommodation decisions on an individual’s sex. The proposed rule also specifies that religious beliefs may be used as a basis for making such decisions.
Rep. Jennifer Wexton, a Virginia Democrat, spoke out against this proposed rule, stating that it would gut the protections of the Equal Access Rule. HUD Secretary Ben Carson responded by calling her to say, “Our intention is to stop treating sex and self-identified gender as the same, because I believe Washington shouldn’t be telling the rest of America how to determine whether someone is a man or a woman.”
This was hardly the only time that Secretary Carson has expressed indifference or hostility to the rights of people who don’t identify with the gender they were assigned at birth. He has publicly expressed support for a ban on transgender service members in the military, calling them “abnormal.” And in 2019, he commented in an internal meeting that “big, hairy men” are trying to enter women’s shelters.
HUD is not the only federal agency in recent years that has taken measures to allow discrimination against LGBTQ+ individuals who are seeking shelter accommodations. In November 2019, the Department of Health and Human Services (HHS) proposed a rule that would allow HHS grants to be awarded to entities that discriminate on the basis of sexual orientation and gender identity. Recipients of these grants include providers of supportive housing service for the homeless, transitional living programs for homeless youth and shelters for victims of family violence.
The Supreme Court Changes the Landscape
The Supreme Court’s decision in Bostock v. Clayton County, GA, which states that gender identity discrimination is a form of sex discrimination, suggests that these anti-trans rules are unenforceable. However, it remains to be seen whether HUD and HHS will see it that way. The new HHS rule was finalized shortly before the Bostock ruling was issued, and its language states that the rule might be applicable “even if courts were to deem the categories of sexual orientation or gender identity to be encompassed by the prohibition on sex discrimination in Title VII.”
This language is a signal that HHS may stand by the rule in spite of Bostock. HHS’s explanation for why the rule would be applicable after Bostock is that “the binary biological character of sex…takes on special importance in the health context.” If the Trump Administration is willing to argue that health care discrimination is so different from employment discrimination that the Bostock decision does not apply to it, then HUD may try to argue that housing is also a special category in which gender identity discrimination is acceptable.
If HUD pushes forward with its proposed rule, it could result in shelters turning away more potential residents on the basis of their gender identity. Instead of rejecting people for being trans and/or non-binary, shelters should be doing all they can to protect them, as they are often the people most in need of shelter. One in five trans individuals have been homeless at some point in their lives. Seventy percent of the respondents to the 2017 U.S. Transgender Survey who had stayed in a shelter in the past year had been mistreated there on account of their gender identity. And according to a study by the National Alliance to End Homelessness, homeless adults who identified as nonbinary or genderqueer were the least likely to find shelter.
LGBTQ+ youth are particularly vulnerable, as they are more likely to be homeless than their straight counterparts, and they are disproportionately likely to engage in paid sex work in order to survive. The average age for transgender youth to enter prostitution is 11-13. LGBTQ+ children should not be forced to choose between a life of sex work during a pandemic, and the risk of humiliation and rejection at shelters.
Jake Lilien is NCRC’s Compliance Program Manager