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Proposed HUD rule would strip transgender protections at homeless shelters

Secretary of Housing and Urban Development Ben Carson watches as President Trump and first lady Melania Trump arrive for a dinner celebrating evangelical leadership in the State Dining Room of the White House on Aug. 27, 2018. Washington Post photo by Jabin Botsford.

WASHINGTON - The Department of Housing and Urban Development on Wednesday proposed a new rule that would weaken Obama-era protections for homeless transgender people, allowing federally funded shelters to deny people admission on religious grounds or force transgender women to share bathrooms and sleeping quarters with men.

The proposed rule comes one day after HUD Secretary Ben Carson assured members of Congress that the agency had no plans to eliminate the 2012 Equal Access Rule, which banned federal housing discrimination on the basis of sexual orientation or gender identity.

When questioned by Rep. Jennifer Wexton, D-Va., on HUD's treatment of transgender people, Carson said his responsibility is to "make sure everybody is treated fairly. "

He assured Wexton that HUD had no plans to alter the Equal Access protection, saying: "I'm not currently anticipating changing the rule."

The proposal is the latest move by the Trump administration to weaken protections for transgender Americans, including a Department of Defense ban on transgender troops and a Department of Health and Human Services proposal allowing medical providers to deny treatment to transgender people on religious grounds.

In 2017, the HUD website removed links to documents that guided emergency shelters on how best to serve transgender people facing homelessness and comply with agency regulations. It also withdrew policy proposals requiring HUD-funded emergency shelters to post notices informing people of LGTBQ rights and protections.

Carson told the House Financial Services Committee that those notices were unnecessary because the Equal Access Rule provisions already "adequately provide for fairness for all communities." He said he wanted to allow for more "local jurisdictional control" over how to treat people.

As to whether LGBTQ people should be protected under fair housing and other civil rights laws, Carson said: "If you want to do something different about the definition of gender, that is a congressional duty. "

Wexton on Wednesday chastised Carson for HUD's move to roll back transgender protections.

"Yesterday, I asked Secretary Carson directly if he was anticipating any changes to HUD's Equal Access Rule and he said no," Wexton said in a statement Wednesday. "The announcement today that HUD will now allow anti-trans discrimination in shelters demonstrates that he either lied to Congress or has no idea what policies his agency is pursing. Either way, it's unacceptable."

The agency published a one-paragraph summary of the proposal, allowing shelters whose facilities are segregated by sex - such as bathrooms, showers and sleeping quarters - to establish a policy that considers an individual's sex for the purposes of determining admission. The new rule says shelters could consider a range of factors, including "privacy, safety, practical concerns, religious beliefs" when deciding whether or how to accommodate someone.

The agency, in its summary, also said the rule "continues HUD's policy of ensuring that its programs are open to all eligible individuals and families regardless of sexual orientation or gender identity."

Transgender advocates characterized it as a "heartless attack" and said it signifies an "escalation of the Trump administration's broader plan to erase transgender people from federal regulations and legal interpretations. "

"It completely guts the Equal Access Rule," said Mara Keisling, executive director of the National Center for Transgender Equality. "The Trump administration is, once again, targeting the most vulnerable trans people by empowering shelters to turn people away and deny them equal access to services."

The agency told The Washington Post it has no intention of removing the Equal Access Rule and will continue enforcing its provisions. But in a statement, HUD acknowledged that the agency will be proposing a change later this year "that will offer local homeless shelter providers greater flexibility when making decisions about individuals who may misrepresent their sex to access sex-specific shelters."

One in 3 transgender people has experienced homelessness - including 1 in 8 in the past year, putting them at risk of physical and sexual violence and being forced into sex work, according to the National Center for Transgender Equality.

Seventy percent of transgender people who tried going to a shelter in the past year were kicked out for being transgender, were physically or sexually assaulted, or faced another form of mistreatment because of their gender identity, the center said.

The new proposal caught career staffers by surprise, including some who have worked on writing housing policies related to LGTBQ people.

"We don't even know where it's coming from. What are they hoping to accomplish?" said one staffer who spoke on condition of anonymity because the staffer is not authorized to speak on the record. "Now it's not clear what guidelines people are supposed to follow. It's crazy."

Similarly, HUD career staffers were not involved in a Trump administration proposal to purge undocumented immigrants from subsidized housing. Career staffers later wrote an analysis of the proposal targeting families of mixed immigration status and concluded that it could put up to 55,000 children who are legal U.S. residents or citizens at risk of eviction and homelessness.

This article was written by Tracy Jan, a reporter for The Washington Post.