Lesbian, gay, bisexual, and transgender (“LGBT”) people across the U.S. have long suffered from high rates of housing discrimination and homelessness. Recognizing these issues, the federal agency in charge of national housing law—the Department of Housing and Urban Development (“HUD”)—has adopted protections for LGBT people to ensure they have equal access to HUD programs and HUD-funded housing. These protections, collectively known as the Equal Access Rule (“EAR”), have been in place for over a decade.
Recently, however, HUD issued a proposal that would eliminate the EAR. The proposal is not yet finalized because, under federal law, HUD is required to solicit and review public feedback before implementing changes. With that in mind, CHAPA has spent months advocating for Massachusetts organizations to oppose HUD’s proposal, and it has also submitted its own comment letter urging HUD to reverse course.
HUD’s deadline for the submission of public comments has now passed. Over the coming weeks, as HUD reviews public feedback and works toward finalizing the proposal, it is critical to spread the word about how harmful the proposal would be for the LGBT community. CHAPA will continue doing so alongside its partners and, as part of those efforts, is now publishing the full text of its comment letter.
A PDF of the letter, including footnotes, is available here. You can also read the text of the letter below:
I. Interests of CHAPA
CHAPA is a Massachusetts non-profit advocacy organization with over 1,200 members. Our mission is to encourage the production and preservation of housing that is affordable to low and moderate-income households and foster diverse and sustainable communities through planning and community development. CHAPA’s membership is comprised of people and entities from across Massachusetts housing community, including developers and owners, community development corporations, tenants, tenant organizations, civil rights groups, lenders, investors, and community finance institutions
II. Introduction
Lesbian, gay, bisexual, and transgender (“LGBT”) people in America experience disproportionately high rates of homelessness and widespread discrimination that limits their access to housing. These issues are acute in the trans community, which also faces heightened barriers to shelter access. Historically, many single sex shelters have excluded trans people; and, due to risk of mistreatment, trans people often avoid shelters designated for their sex assigned at birth.
HUD’s Equal Access Rule (“EAR”) is tailored to address these well-documented issues. To ensure the vulnerable LGBT population has equal opportunity to benefit from HUD resources, the EAR requires that: (1) HUD-assisted housing be available “without regard” to “sexual orientation” or “gender identity”; and (2) facilities funded by the Office of Community Planning and Development (“CPD”) provide “access … benefits, services, and accommodations … in accordance with the individual’s gender identity.” In short, these provisions prohibit gender- and sexuality-based discrimination in HUD-funded housing and require CPD supported shelters to place and serve people based on their gender identity.
However, the Proposed Rule operates to eliminate these LGBT protections. It does so by removing all references to “sexual orientation” and “gender identity” in the relevant provisions and replacing them with the word “sex,” defined as “an individual’s immutable biological classification as either male or female.” Thus, if finalized, the Proposed Rule would transform the EAR into a fundamentally different policy—one that is silent on LGBT discrimination and access.
In attempting to rationalize this change, HUD neither disputes the existence of the LGBT housing challenges underlying the EAR, nor claims the EAR is ineffective in addressing those challenges. Instead, HUD asserts the Proposed Rule is necessary to address three primary problems with the EAR, namely that it: (1) compromises privacy and safety for cisgender women; (2) imposes an “unacceptable burden” on the religious exercise of “many” faith-based shelters; and (3) conflicts with the policy and directive of Executive Order 14158.
This explanation is woefully insufficient to justify HUD’s wholesale abandonment of the EAR’s LGBT protections. Those safeguards have formed a longstanding bulwark against LGBT housing discrimination and are necessary to facilitate meaningful shelter access for the trans community. Any decision to rescind them will not only create an enforcement vacuum that facilitates unfair treatment against the LGBT population, but also—especially for trans people—exacerbate homelessness levels that have already reached a crisis point.
As discussed in more detail below, the Proposed Rule: lacks support in its threadbare record for key factual assumptions; ignores a mountain of publicly available evidence undermining its claims; and fails to show how its sweeping policy reversal is a remotely rational response to existing circumstances.
III. The EAR is a Targeted Solution to Two Real Problems: LGBT Homelessness and Anti-LGBT Discrimination
A. LGBT Homelessness
Research across the country has repeatedly found that LGBT people suffer from elevated rates of homelessness compared to cisgender straight people. For example, one study of adults by UCLA’s Williams Institute found higher rates of recent homelessness—i.e., homelessness in the past year—for both trans people (8%) and non-trans sexual minorities (3%) relative to cisgender straight people (1%).1 It also examined the proportion of non-trans sexual minorities who have been homeless at any time in their life (“lifetime homelessness”), finding that 17% had homelessness experience vs. only 6% of the general population.
While this research lacked data on the prevalence of lifetime homelessness among transgender people, other studies support that it’s very high. One point of reference is the 2015 National Transgender Survey. In that survey’s sample, which included over 27,000 transgender people from all 50 states, 30% of respondents reported having been homeless at least once.
LGBT people also make up an outsized share of homeless youth. In 2022, the Trevor Project cited considerable data showing that “LGBTQ youth are overrepresented among young people experiencing homelessness.” This builds on reports from many other organizations, like the Center for American Progress (“CAP”), which have outlined support for this point.5 According to a 2013 CAP report, LGBT people make up only 5-7% of all American youth, but estimates suggest that they represent 9-45% of homeless youth.
B. Anti-LGBT Discrimination and Mistreatment
The LGBT population is also subject to pervasive housing discrimination and mistreatment in the United States. HUD itself has generated strong empirical evidence, through large-scale paired testing, that same-sex couples experience less favorable treatment than heterosexual couples in the private rental market.7 Moreover, as part of the EAR rulemaking process, HUD cited a similar testing study conducted by Michigan fair housing centers. That study uncovered disparate treatment of gay and lesbian home seekers on a variety of issues.
Trans people encounter similar prejudice when they pursue rental housing. For example, a matched pair testing study of the Boston, Massachusetts rental market found that transgender and gender non-conforming people received “discriminatory differential mistreatment 61% of the time.”
The trans community also faces a unique set of barriers to shelter access. Trans individuals, by their nature, have an internal gender identity that differs from their sex assigned at birth. Many trans people choose to live in accordance with that identity, including by changing their pronouns and aligning their external appearance to match how they feel. This sense of self is deeply held. Thus, when trans people are misgendered—that is, have their identity invalidated, often through words or actions—many feel stigma and psychological stress.
Prior to the current version of the EAR, this kind of misgendering, and other forms of mistreatment based on gender identity, were common for trans shelter seekers. According to the 2015 US Transgender Survey, of the respondents who experienced homelessness and sought shelter: “almost 30% reported being denied shelter due to being transgender or due to their gender expression,” and 44% experienced some form of mistreatment at a shelter, including harassment, assault, or requirements to dress or present as the wrong gender.”
C. The EAR is Narrowly Tailored to Address Those Problems
The current version of the EAR, amended in 2016 to require that CPD-funded shelters place, serve and accommodate transgender people based on their gender identity, is finely tuned to address the housing challenges faced by the LGBT community. In particular, through the rule’s current structure, HUD is proactively seeking to address the discrimination, mistreatment, and unequal housing access that have long plagued LGBT people in the United States.
Notably, the final rule is clear that, to the extent anyone in shelter needs an accommodation based on privacy concerns, such accommodations should be made available to the extent they are not discriminatory.
IV. HUD Has Failed to Justify Its Sweeping Policy Reversal
A. Privacy and Safety Rationale
HUD initially attempts to justify the Proposed Rule as somehow necessary to protect the safety and privacy of cisgender women. Regarding safety, the Proposed Rule notes that “Homeless women are at increased risk of sexual assault by biological males” and that requiring admission of trans women into “shared sleeping, bathroom, and other intimate settings continues to place [cisgender homeless] women at risk of sexual harassment and assault.”
But neither of these claims are borne out by the facts. The reality is that, in jurisdictions that permit trans people to access sex segregated spaces, crime rates do not increase. One empirical analysis of Massachusetts municipalities provides compelling evidence. Specifically, the study compared crime data between jurisdictions with and without gender identity inclusive public accommodations laws, finding that “the passage of such laws is not related to the number or frequency of criminal incidents in these spaces.”
The Proposed Rule also contends that allowing trans women, who it refers to as “biological men,” into women’s only shelters will expose cisgender women to “trauma” and fear. This is pure speculation. And even if it wasn’t, HUD’s proposed solution to this problem is paradoxical. If its Proposed Rule goes into effect, it will mandate that transgender men—including those that have undergone hormone therapy, gender conforming surgery, grown beards, etc.—can only stay in single sex shelters designated for women. This would mean that cisgender women would continue to be exposed to people who look like men.
Ultimately, if this kind of fear was even a problem, HUD does not explain why the current rule’s allowance for privacy accommodations would not solve it in individual cases raised by shelter residents.
B. HUD’s Other Assertions
None of HUD’s other assertions justify abandoning its longstanding EAR. Not only does the LGBT community rely on it, but so do the many shelter providers whose policies reflect the longstanding rules. Additionally, HUD only cites to one shelter in Alaska that raises religious objections. One shelter provider’s objections cannot justify the recission of an entire policy, especially when there are narrower alternatives available within the ambit of the current rule.
V. Conclusion
Thank you for your consideration of these comments. Again, we oppose implementation of the Proposed Rule and urge HUD to rescind it immediately.