The Trump administration’s recent move to codify transphobic and sexist rules into federally operated shelters comes as no surprise to advocates and policy experts. After all, that’s why they refer to it as the “discrimination administration.” On July 1, the Department of Housing and Urban Development proposed modifying the federal equal access rule to permit homeless shelters to surveil and deny service to people thought to be transgender.
The federal government alleges that the rule provides operators of single-gender shelters the liberty to ensure the safety of their clients by determining “an individual’s sex based on a good faith belief that an individual seeking access to the temporary, emergency shelters is not of the sex, as defined in the single-sex facility’s policy, which the facility accommodates.”
According to Rodrigo Heng-Lehtinen, deputy executive director at the National Center for Transgender Equality, what makes this latest federal guidance so egregious is the dehumanization of transgender people and the encouragement of shelter providers to surveil and police those seeking services. Under the proposed guidance, providers can scrutinize people’s “physical characteristics,” such as height or hair to determine if they’re “indicative of a person’s biological sex.”
“I have never seen written into regulation this notion of you can visually check for certain things,” said Terra Russell-Slavin, the director of policy and community building at the Los Angeles LGBT Center, which provides social, professional, and emotional services to LGBTQ+ folks in the Los Angeles region, including an emergency shelter and a transitional shelter. “This notion of appearance or absence of facial hair—I was just floored.”
By linking physical characteristics with gender, Russell-Slavin explains that the federal government is attempting to codify an “essentialized” embodiment of womanhood, which serves to write transgender people out of existence. Heng-Lehtinen says that while the language is especially harmful to transgender, gender nonconforming, and gender nonbinary people, the proposed rule is a state-sanctioned attack on “women who don’t meet their expected norms” or anyone whose body doesn’t align with what the Trump administration believes is a “normal” body.
The guidance directly contradicts the intention of the Equal Access Rule, first created under the Obama administration in 2012 and expanded in 2016 because the previous version of the rule “did not address how transgender and gender non-conforming individuals should be accommodated in temporary, emergency shelters.” The latest change to the rule is shrouded in veiled language that vilifies transgender women under the guise of protecting cisgender women, and questions the validity of transgender women by insinuating that they are really cisgender men in disguise.
Russell-Slavin says that nationwide shelter operators didn’t ask for this rule. In fact, it makes their work more difficult and prevents them from serving people most in need of a safe place to sleep.
The center has over 100 beds and operates at full capacity each evening. The center’s limited resources and lack of public infrastructure to serve transgender people experiencing homelessness means that thousands of LGBTQ+ people are forced into precarious and potentially dangerous sleeping or housing situations, Russell-Slavin says. Having access to a stable, safe, and affirming place to rest and sleep allows at least 90% of the center’s clients to find employment and housing of their own.
Despite what HUD Secretary Ben Carson may say, the guidance isn’t about assisting shelter providers, but harming transgender people. Russell-Slavin pointed out that realistically, HUD just gave the “go-ahead from the federal government [to discriminate against transgender people].”
“It’s clearly an attack on trans and gender non-binary community members,” said Russell-Slavin. “Even the threat of the rule is a barrier to services—it creates a narrative that spaces aren’t accessible [and] gives programs that want to discriminate the grounds and the leg work.”
Codifying barriers to accessing emergency housing further perpetuates an already dire housing problem. According to the National Center for Transgender Equality, nearly 20% of transgender people face discrimination when looking for housing and at least 10% have been evicted from housing for being transgender, and the rates are twice as high for transgender women as they are transgender men. When compounded with the litany of ways in which transgender people are discriminated in their search for employment and housing, the rates of transgender people who struggle to access shelter is extraordinarily high.
Transgender people more likely to be homeless than other LGBTQ+ people, who are in turn more likely than heterosexual and cisgender people to suffer from a lack of shelter. Russell-Slavin says that 40% of homeless youth are LGBTQ+, and according to the National Coalition to End Homelessness, half of all transgender people experiencing homelessness resided in California. Access to housing during a pandemic is life saving, without which transgender, gender nonconforming and gender nonbinary people would be put at additional risk for contracting COVID-19.
It’s unlikely that the HUD rule will stand says Heng-Lehtinen, given the Supreme Court’s June ruling that sex discrimination protections apply to gender as well. Still, the rule successfully sows confusion among shelter operators, advocates, and those seeking support or services. Even if the rule doesn’t last, there will be lasting damage because of the Trump administration’s insistence on denying basic rights, protections, and services to transgender people, which Heng-Lehtinen says dehumanize trans people.
An increasing number of people living in the U.S. identify as transgender, gender nonbinary, and gender nonconforming, individuals whose identities are not well-respected or protected in state and federal law. Because of this, Heng-Lehtinen explains that trans people are experiencing “advances and setbacks at the same time.” For instance, he says, Virginia updated its non-discimrination protections to prohibit exclusion of LGBTQ+ folks from accessing public services and institutions. Around the same time, the governor of Idaho approved legislation to prohibit people from changing the sex designation on birth certificates, which after a lengthy court battle has since been overturned. In May, the Department of Education issued federal guidance that Title IX protections required that schools ban transgender students from participating in sports. Just two months after that, HUD issued its shelter guidance.
“Shelters are about trying to help people in time of need,” Heng-Lehtinen says. “Welcoming trans people is compatible with preserving safety.”