HUD Has a Ridiculous Legal Argument for Turning Trans People Away From Federally Funded Shelters

HUD Secretary Dr. Ben Carson speaks before U.S. President Donald Trump signed a proclamation to honor Martin Luther King, Jr. day at the White House, on Jan. 12, 2018, in Washington, D.C.
Photo: Mark Wilson/Getty Images

The Trump administration has spared no minority group its vitriol and hate, but transgender people have been especially targeted and maligned by the president and his cabinet. It started with his efforts to ban trans people from serving in the military and denying trans people access to medical care.

His latest attack carried out by his henchman-in-crime, Housing and Urban Development Secretary Ben Carson, is focused on transgender people who are seeking housing at federally funded shelters. Earlier this year, HUD began a process where the department will explore a proposed rule that will allow federally funded shelters the discretion to determine if the person is trans and to decide if a trans person can live at their facilities. As The Root previously reported, HUD created the Equal Access Rule under the Obama administration, making it clear that HUD-funded shelters cannot discriminate against trans people.

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Months later, the rule is still being considered.

In an email to The Root, a HUD spokesperson justified the department’s exploration of the rule change by claiming it is protecting female shelter clients against people misrepresenting their gender identity. (HUD used the language “biological men,” which The Root acknowledges is misgendering.)

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“HUD’s current Equal Access Rule leaves no room for shelter providers to make decisions about potentially dangerous individuals who may misrepresent their sex to access sex-specific shelters,” the email reads. “Further, HUD’s current rule does not consider the practical concerns of shelter providers who serve vulnerable clientele in difficult conditions, including those seeking refuge from abusive relationships or domestic violence.”

The email cited several lawsuits from plaintiffs claiming “biological males” identifying as women put other female clients in danger. Former HUD officials, trans rights activists and attorneys who specialize in civil rights issues told The Root that the rule proposal is a clear attempt by the Trump White House to legally discriminate against trans people. But, even more sinister, it allows shelters, not the individual, to determine a person’s gender on the spot and to define trans people as dangerous.

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“It’s making it 10 times worse [for homeless trans people],” said Tamika Spellman, a transgender woman and policy and advocacy advocate at HIPS. “Even given the thought that this could possibly bolster some of these people’s angst against us, that is not something that I look for my government to do. Our government should be making it smoother for everybody to live in peace. Instead of that, we have an idiot in the White House that is fostering hate and division.”

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“It’s effectively turning somebody away because the majority of people will resort to sleeping on the street because they can’t be housed according to their gender identity,” said Maya Rupert, a former senior adviser to then-HUD secretary Julián Castro and his current campaign manager. “The impact will leave a number of trans people, particularly trans women of color, vulnerable to instances of violence because they can’t get access to housing that is meant to protect them.”

Rupert says it can take up to a year for a rule to be workshopped by the public before a final decision is made. Legal experts say the rule likely runs afoul of the 2013 Fair Housing Act, but HUD is trying to take advantage of the fact that the Supreme Court has not definitively ruled on the rights of trans people and equality.

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Castro expressed dismay at HUD’s decision to move forward with its attempts to reverse the rule he created back in 2016 that bars discrimination against trans people.

“At HUD, we expanded the equal access rule to include the transgender community so that at any publicly funded shelter they must be accommodated according to how they identify,” Castro said in a statement to The Root. “That’s an issue of safety. Trans youth, in particular, are among the most vulnerable among us and deserve to be safe. The Trump administration’s idea to reverse this policy is wrongheaded and hurtful and it can have life or death consequences—and why, for politics? That’s just dumb.”

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Ifeoma Ike, a civil rights attorney and social impact strategist with Think Rubix, said HUD’s framing and justification for reversing the 2016 rule makes it very hard for advocates to successfully argue against this type of discrimination.

“We think we live in a country where you can’t discriminate; that is false. Unlike discrimination based on race and ethnicity, which receives the highest form of scrutiny and puts the burden on the government agency to provide a compelling reason why discrimination is necessary, the standard is much lower when the discrimination is based on sexual identity and orientation” said Ike. “The Trump administration is taking full advantage of its conservative bench and using ‘safety’ as a reason to create legal precedent to discriminate against transgender persons, even though the data doesn’t support the notion that they are any more dangerous than other communities.”

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Last week, the Supreme Court began hearing arguments from three cases that deal with employment discrimination against transgender and gay people, which could impact HUD’s proposed rule. (Two, from Michigan and New York, were combined because they involved men who were terminated after coming out as gay.) But the current court has shifted right over the past few years and there is a chance the landmark cases before them could go against trans people’s favor. For now, state courts are left to deal with interpreting what discrimination against trans people is, Ike added.

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Jonathan Puth, a partner at Washington, D.C.-based Correia & Puth, PLLC, said part of the high court’s decision will be to determine if trans people are protected under Title VII of the Civil Rights Act of 1964.

But he argues that HUD’s justification for the possible rule change contradicts itself.

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“[HUD] says that they protect against discrimination based solely on a person’s sexual orientation or gender identity, which it clearly does not because in the next paragraph they say it is HUD’s belief that shelter should be able to define for themselves how to define sex consistent with state or local law ,” Puth said. “How should shelter be in a better position to define sex than the individual who has their own gender that they live and breathe every day?”

HUD Secretary Carson has a long history of anti-LGBTQ remarks, including comparing gay marriage to bestiality. Recently, he upset staff at a HUD meeting with transphobic comments in which he expressed fears of “big, hairy men” seeking entry into women’s shelters. In response, the House filed a resolution denouncing Carson as transphobic. Toni Newman, the executive director of the San Francisco-based St. James Infirmary, wonders why the Trump administration is so focused on trans people, given that they make up less than 1 percent of the population.

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Newman says if HUD’s rule becomes official, homeless transgender people in southern states will face the brunt of it. “If you are a trans homeless individual in South Carolina, you got issues there,” said Newman, who manages a nearly $2 million budget at her organization. “You probably won’t get housed in a HUD facility with women if you identify as a trans woman. That’s probably a fact.”

In 2019 alone, at least 21 trans women—20 of them black—have been killed, which is part of a larger trend of killings over the last three years. One in five transgender people in America has faced discrimination when seeking a home and more than one in 10 have been evicted from their homes because of their gender identity, according to National Center for Transgender Equality. Forty-one percent of black transgender people have experienced homelessness at some point in their life, more than five times the rate of the general population.

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HUD’s plan to reverse the 2016 rule isn’t helping upend these statistics, Spellman said.

“A lot of us are dependent on shelters until we can stabilize ourselves because the system offers nothing as far as relief,” she said. “What the last administration did was a noble act, but it did not go far enough. And to have a president making it harder for people to live in this country is unfathomable.”

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About the author

Terrell Jermaine Starr

Terrell Jermaine Starr is a senior reporter at The Root. He is currently writing a book proposal that analyzes US-Russia relations from a black perspective.

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