[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Proposed Rules]
[Pages 44811-44818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14718]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5 and 576
[Docket No. FR-6152-P-01]
RIN 2506-AC53
Making Admission or Placement Determinations Based on Sex in
Facilities Under Community Planning and Development Housing Programs
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would provide that grant recipients,
subrecipients, owners, operators, managers, and providers under HUD
programs that permit single-sex or sex-specific facilities (such as
temporary, emergency shelters or other facilities with physical
limitations or configurations that require and are permitted to have
shared sleeping quarters or bathrooms) may establish a policy,
consistent with federal, state, and local law, to accommodate persons
based on sex. The proposed rule would maintain requirements from HUD's
2012 final rule entitled ``Equal Access to Housing in HUD Programs
Regardless of Sexual Orientation or Gender Identity'' and would require
shelters to uniformly and consistently apply any such policy the
shelter develops. The proposed rule would require any determination of
sex by the shelter provider to be based on a good faith belief, and
require the shelter provider to provide transfer recommendations if a
person is of the sex not accommodated by the shelter and in some other
circumstances.
DATES: Comment Due Date: September 22, 2020.
ADDRESSES: Interested persons are invited to submit comments regarding
this Proposed Rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW, Washington, DC 20410-0500. Room 10276, Washington, DC 20410-0500.
Communications must refer to the above docket number and title. There
are two methods for submitting public comments. All submissions must
refer to the above docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments
must be submitted through one of the two methods specified above.
All submissions must refer to the docket number and title of the
rule.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an advance appointment to review the public comments must be
scheduled by calling the Regulations Division at 202-708-3055 (this is
not a toll-free number). Individuals with speech or hearing impairments
may access this number through TTY by calling the Federal Relay Service
at 800-877-8339 (toll-free number). Copies of all comments submitted
are available for inspection and downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Andrew Hughes, Chief of Staff, U.S.
Department of Housing and Urban Development, 451 7th Street, SW,
Washington, DC 20410, telephone number 202-402-7204 (this is not a
toll-free number). Persons with hearing or speech impairments may
access this number via TTY by calling the Federal Relay Service at 800-
877-8389 (toll-free number).
SUPPLEMENTARY INFORMATION:
I. History
HUD has always supported effective models at reducing homelessness
and providing emergency shelter for those in
[[Page 44812]]
need, including through supporting single-sex or sex-specific shelters.
In 2012, HUD published a final rule entitled ``Equal Access to
Housing in HUD Programs Regardless of Sexual Orientation or Gender
Identity'' (2012 Rule) to ensure that its core housing programs are
open to all eligible families and individuals ``without regard to
actual or perceived sexual orientation, gender identity, or marital
status.'' \1\ The 2012 Rule defined ``gender identity'' as ``actual or
perceived gender-related characteristics.'' \2\ The 2012 Rule generally
prohibited inquiries into gender identity in determining eligibility or
making housing available, but permitted inquiries related to an
applicant's or occupant's sex for the limited purpose of determining
placement in temporary, emergency shelters with shared bedrooms or
bathrooms, or for determining the number of bedrooms to which a
household may be entitled.\3\ In promulgating the 2012 Rule, HUD relied
on the Secretary's general rulemaking authority pursuant to section
7(d) of the Department of HUD Act,\4\ rather than the Fair Housing Act
\5\, or other civil rights and nondiscrimination authorities.
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\1\ 77 FR 5662, February 3, 2012.
\2\ See Sec. 5.100 at 77 FR 5674. This definition comes from 18
U.S.C. 249.
\3\ See Sec. 5.105(a)(2)(ii) at 77 FR 5674.
\4\ 42 U.S.C. 3535(d).
\5\ 42 U.S.C. 3601-3619 (prohibits discrimination in housing
because of race, color, national origin, religion, sex, familiar
status and disability).
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After the promulgation of the 2012 Rule, HUD determined that the
2012 Rule did not comprehensively define how shelters must accommodate
transgender individuals. On September 21, 2016, HUD expanded on its
2012 Rule and published a final rule entitled, ``Equal Access in
Accordance with an Individual's Gender Identity in Community Planning
and Development Programs'' (2016 Rule). HUD mandated that transgender
persons and other persons ``who do not identify with the sex they were
assigned at birth'' be given access to Community Planning and
Development (CPD)-assisted programs, benefits, services, and
accommodations, some of which are permitted to be operated on a single-
sex or sex-specific basis (collectively, ``single-sex facilities''), in
accordance with their gender identity. These programs include temporary
and emergency shelter programs, such as the Emergency Solutions Grants
\6\ program and the Housing Opportunities for Persons with AIDS (HOPWA)
program.\7\ The 2016 Rule maintained the definition of ``gender
identity'' included in the 2012 Rule to mean ``the gender with which a
person identifies, regardless of the sex assigned at birth[.]'' \8\
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\6\ Codified in 24 CFR part 576.
\7\ Codified in 24 CFR part 574.
\8\ 80 FR 72648.
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The 2016 Rule removed paragraph 5.105(a)(2)(ii), the provision of
the 2012 Rule that allowed for lawful inquiries into an occupant's sex
in the case of temporary or emergency shelters with shared bathroom or
bedroom facilities, or for the purpose of determining the number of
bedrooms to which a household may be entitled. Instead, the 2016 Rule
contained a provision that policies and procedures must ensure that
individuals are not subject to intrusive questioning or asked to
provide anatomical information or documentary, physical, or medical
evidence of their gender identity.\9\
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\9\ Section 5.106(b)(3).
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The 2016 Rule, Sec. 5.106(c), requires that individuals seeking
access to single-sex facilities be placed and accommodated in
accordance with their self-identified gender identity, expressly
declining to adopt a provision of the proposed rule that provided that
in certain cases, an alternative accommodation for a transgender
persons and other persons ``who do not identify with the sex they were
assigned at birth'' would be appropriate to ensure health and safety.
Section 5.106(c) requires recipients to take nondiscriminatory steps as
necessary and appropriate to address the privacy concerns of all
residents and occupants. No funding was specifically provided for this
purpose.
Finally, the Housing Trust Fund and Rural Housing Stability
Assistance programs were added explicitly to the non-exclusive list of
programs covered, and language was added to indicate that the 2016 rule
applies to both recipients of HUD CPD grants and subrecipients, as well
as those who administer CPD-funded programs and services.
II. Proposed Rule
HUD has reconsidered its 2016 Rule and determined that providers
should be allowed, as permitted by the Fair Housing Act, to consider
biological sex in placement and accommodation decisions in single-sex
facilities. HUD thus proposes to allow shelters that may already
consider sex in admission and accommodation decisions (i.e., facilities
that are not covered by the Fair Housing Act) to establish a policy
that places and accommodates individuals on the basis of their
biological sex, without regard to their gender identity. This will
allow single-sex facilities to regain the flexibility to serve their
unique populations that they have following the 2012 Rule. Nothing in
the proposed rule restricts shelters from maintaining a policy on
placing and accommodating an individual based on gender identity.
The proposed rule leaves in place requirements from the 2012 Rule
that shelters and all other participants in HUD programs ensure that
their programs are open to all eligible individuals and families
without regard to sexual orientation or gender identity. Thus, a
shelter may place an individual based on his or her biological sex but
may not discriminate against an individual because the person is or is
perceived as transgender.
For example, under the proposed rule, if a single-sex facility
permissibly provides accommodation for women, and its policy is to
serve only biological women, without regard to gender identity, it may
decline to accommodate a person who identifies as female but who is a
biological male. Conversely, the same shelter may not, on the basis of
sex, decline to accommodate a person who identifies as male but who is
a biological female. A different shelter may choose not to make
placement decisions or accommodations based on biological sex and there
remains no mandate that shelters take biological sex into account.
III. Justification for the Rule Change
HUD believes this proposed rule better resolves the various
equities involved within the shelter context than HUD's 2016 Rule. In
particular, HUD believes that the 2016 Rule impermissibly restricted
single-sex facilities in a way not supported by congressional
enactment, minimized local control, burdened religious organizations,
manifested privacy issues, and imposed regulatory burdens.
First, the 2016 Rule restricted single-sex facilities in a way not
supported by Congressional enactment. Congress has prohibited
discrimination on the basis of sex in ``dwellings under the Fair
Housing Act. But it has not acted to prohibit consideration of sex in
temporary and emergency shelters, many of which do offer sex-specific
housing or sex-specific areas of housing (such as facilities with
physical limitations or configurations that have shared sleeping
quarters or bathing areas). As the 2016 Rule recognizes, ``[a]n
emergency shelter and other building and facility that would not
qualify as dwellings under the Fair Housing Act are not subject to the
Act's
[[Page 44813]]
prohibition against sex discrimination and thus may be permitted by
statute to be sex segregated.'' \10\ But HUD's 2016 Rule effectively
restricts shelters from making this policy choice permitted by the Fair
Housing Act, by--for example--requiring shelters to allow biological
males who self-identify as females to be admitted to female-only
shelters. Thus, under HUD's 2016 Rule, the female-specific shelters
that are permitted under the Fair Housing Act can be effectively
restricted from being female-specific.
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\10\ 80 FR 72644 (preamble) (emphasis added).
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Moreover, HUD did not rely on explicit statutory authorization,
like the prohibition against ``sex'' discrimination under the Fair
Housing Act, when HUD implemented its 2016 Rule. Rather, HUD relied on
the Secretary's plenary authority to issue regulations, indicating that
``HUD's establishment of programmatic requirements for temporary,
emergency shelters and other buildings and facilities funded through
HUD programs is well within HUD's statutory authority and an important
part of HUD's mission in ensuring access to housing for all
Americans.'' But HUD should not reach beyond the authority granted to
HUD by Congress. By acting under plenary authority instead of a more
specific affirmative grant of authority from Congress, the 2016 Rule
violated the basic principle of administrative law that an agency
should not go beyond the scope of the power granted them by duly
enacted legislation and imposed a regulatory burden. Agencies are to
``implement the statute according to its text and to apply the law no
further than the text would permit'' because ``any attempt to do so is
a threat to individual freedom.'' \11\
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\11\ White House memorandum ``Legal Principles for All
Administrative Action,'' by Donald F. McGahn II to General Counsels
and Chief Legal Officers of All Executive Branch Agencies (May 10,
2018).
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Second, the 2016 Rule minimized local control. The 2016 Rule also
adopted a one-size-fits-all approach to admission and accommodation by
gender identity in temporary shelters, despite significant variation in
State and local law. In just one example, the Rule requires shelters to
admit individuals based on self-identification as the only method of
determining a person's sex. This approach elevates subjective
assertions by persons seeking accommodation and disallows other factors
that could be used to objectively verify sex. Recognizing concerns with
this approach, many states and localities prohibiting transgender
discrimination require a differing bar in enforcing a nondiscrimination
claim based on gender identity, as three examples demonstrate.
Anchorage, Alaska, for example, requires evidence that ``the gender
identity is sincerely held, core to a person's gender-related self-
identity, and not being asserted for an improper purpose.'' \12\ HUD's
definition does not require such evidence. In a second example, New
York City's code prohibits discrimination on the basis an individual's
gender identity, including for housing accommodations. New York City's
code defines gender to encompass perceived gender identity.\13\ In
contrast, HUD's current regulations define gender identity to ignore an
individual's perceived gender identity. More notably, directly contrary
to HUD's regulations, New York City's code explicitly excludes
``shelters for the homeless where such distinctions are intended to
recognize generally accepted values of personal modesty and privacy or
to protect the health, safety or welfare of families with children.''
\14\ In a third example, Massachusetts public accommodations must
accommodate individuals based upon their gender identity. Unlike HUD's
current regulations, Massachusetts law does not contain a reference to
the gender with which an individual identifies. Instead, it defines
gender identity to mean ``a person's gender-related identity,
appearance or behavior, whether or not that gender-related identity,
appearance or behavior is different from that traditionally associated
with the person's physiology or assigned sex at birth.'' \15\ Thus,
this definition contains more objective factors than HUD's current,
purely self-identified regime. Further, unlike HUD's current
regulations, Massachusetts law provides that ``gender-related identity
may be shown by providing evidence including, but not limited to,
medical history, care or treatment of the gender-related identity,
consistent and uniform assertion of the gender-related identity or any
other evidence that the gender-related identity is sincerely held as
part of a person's core identity. . .'' Finally, in Massachusetts,
``gender-related identity shall not be asserted for any improper
purpose. . .'' \16\ while HUD's regulations contain no reference to
improper purposes. Given this wide policy variation, HUD believes that
shelters are best able to serve their beneficiaries when they can
develop their own policies on accommodating those whose gender identity
conflicts with their biological sex and that the issuance of the 2016
prescriptive rule was not appropriate.
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\12\ Anchorage Municipal Code Sec. 5.020.010, available at:
https://library.municode.com/ak/anchorage/codes/code_of_ordinances?nodeId=TIT5EQRI_CH5.20UNDIPR_5.20.0 10DE; see
also, Devin Kelly, Discrimination complaint against downtown
Anchorage women's shelter opens up political front (March 14, 2018),
available at: https://www.adn.com/alaska-news/anchorage/2018/03/14/discrimination-complaint-against-downtown-anchorage-womens-shelter-opens-up-political-front/ (``The law requires the person to prove,
through medical history and evidence of care or treatment of their
gender identity, that their gender identity is ``sincerely held,
core to a person's gender-related self identity, and not being
asserted for an improper purpose.'').
\13\ See N.Y.C. Admin. Code Sec. 8-102 (``Gender''), available
at: https://www1.nyc.gov/assets/cchr/downloads/pdf/TITLE_8_Human%20Rights%20Law_May%202019.pdf. (Gender ``includes
actual or perceived sex, gender identity and gender expression,
including a person's actual or perceived gender-related self-image,
appearance, behavior, expression or other gender-related
characteristic, regardless of the sex assigned to that person at
birth.'')
\14\ N.Y.C. Admin. Code section 8-107(5)(k) (``Applicability''),
available at: https://www1.nyc.gov/assets/cchr/downloads/pdf/TITLE_8_Human%20Rights%20Law_May%202019.pdf. New York City's
Department of Homeless Services has recently issued binding guidance
to require placement of individuals based on their self-professed
gender identity. See NYC Department of Homeless Services, Office of
Policy, Procedures and Training, DHS-PB-2019-015 (July 15, 2019),
available at: https://www1.nyc.gov/assets/dhs/downloads/pdf/dhs_policy_on_serving_transgender_non_binary_and_intersex_clients.pdf
. However, this guidance only applies to locally-funded shelters.
\15\ See Mass. Gen. Laws ch. 22C, section 32, available at:
https://malegislature.gov/laws/generallaws/parti/titleii/chapter22c/section32.
\16\ See Mass. Gen. Laws ch. 4, section 7, available at: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4/section7.
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By adopting a less prescriptive approach, HUD's new proposed rule
better reflects constitutional principles of democracy and federalism.
The current approach requires that shelters admit and accommodate
individuals on the basis of their gender identity, even though more
than 30 states do not have such a requirement. It also prescribed the
means by which shelters had to determine an individual's gender
identity (self-identification), even though states have differing
approaches to this issue, not to mention localities. As this
President's Executive Order 13132, ``Federalism,'' explains, ``issues
that are not national in scope or significance are most appropriately
addressed by the level of government closest to the people,'' and that
the ``national government should be deferential to the States when
taking action that affects the policymaking of the States. . .'' \17\
HUD believes the best way to fulfill this federalism mandate--
particularly in a difficult issue like this with a lack of clear
national
[[Page 44814]]
consensus--is to refrain from enforcing a national solution.
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\17\ Executive Order 1313132, ``Federalism,'' 64 FR 43255,
August 10, 1999.
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Third, the 2016 Rule burdened those shelters with deeply held
religious convictions.\18\ Although not discussed in the 2016 Rule, the
prescriptive approach to admission and accommodation on the basis of
gender identity raises concerns about burdens on faith-based shelter
providers. In some faith traditions, sex is viewed as an immutable
characteristic determined at birth. Thus, legally compelled
accommodation determined on a basis in conflict with the provider's
beliefs could violate religious freedom precepts. For example, Hope
Center in Alaska, a faith-based homeless shelter for women, sued in
Federal District Court to prevent the application of a local law that
would require them to serve biological males who identify as
females.\19\ Hope Center believes that doing so would violate their
sincerely held religious belief that the Bible teaches that God creates
people male or female and ``that it should care for women who lack
shelter,'' thus excluding men.\20\ Hope Center believes that the
application of laws like HUD's 2016 Rule violate the First Amendment's
Free Exercise Clause. HUD's 2016 Rule raises the same potential issue
of coercing ministries like Hope to ``abandon [their] mission and
message. . .'' \21\ in order to participate in government-funded
programs.
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\18\ See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Comm'n, 138 S. Ct. 1719, 1723 (2018) (``The case presents difficult
questions as to the proper reconciliation of at least two
principles. The first is the authority of a State and its
governmental entities to protect the rights and dignity of gay
persons who are, or wish to be, married but who face discrimination
when they seek goods or services. The second is the right of all
persons to exercise fundamental freedoms under the First Amendment,
as applied to the States through the Fourteenth Amendment. The
freedoms asserted here are both the freedom of speech and the free
exercise of religion.'').
\19\ See James Brooks, Municipality of Anchorage will pay
$100,001 to settle transgender-discrimination lawsuit involving
homeless shelter (October 1, 2019), available at: https://www.adn.com/alaska-news/anchorage/2019/10/01/municipality-of-anchorage-will-pay-100001-to-settle-transgender-discrimination-lawsuit-involving-homeless-shelter/.
\20\ For a full discussion of their religious beliefs, see The
Downtown Soup Kitchen v. Municipality of Anchorage, No. 3:18-cv-
00190-SLG, Dkt. No. 1, ``Verified Complaint'', available at: https:/
/adflegal.blob.core.windows.net/mainsite-new/docs/default-source/
documents/legal-documents/the-downtown-soup-kitchen-dba-downtown-
hope-center-v.-municipality-of-anchorage/hope-center-v-anchorage--
complaint.pdf?sfvrsn=9536cb21_4 pp. 8-10; see also Alliance
Defending Freedom For Faith and Justice, Downtown Hope Center v.
Municipality of Anchorage, et al., available at: https://
adflegal.blob.core.windows.net/mainsite-new/docs/default-source/
documents/resources/media-resources/cases/the-downtown-soup-kitchen-
d-b-a-downtown-hope-center-v.-municipality-of-anchorage/hope-center-
v-anchorage--one-page-summary.pdf?sfvrsn=fa9b07be_6.
\21\ The Downtown Soup Kitchen v. Municipality of Anchorage, No.
3:18-cv-00190-SLG, Dkt. No. 1, ``Verified Complaint'', available at:
https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/legal-documents/the-downtown-soup-kitchen-dba-downtown-hope-center-v.-municipality-of-anchorage/hope-center-v-anchorage-complaint.pdf?sfvrsn=9536cb21 4.
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The lack of attention in HUD's 2016 Rule to religious liberty is
problematic because the Department of Justice has emphasized that ``to
the greatest extent practicable and permitted by law, religious
observance and practice should be reasonably accommodated in all
government activity.'' \22\ In some instances, accommodations of
religious objections are necessitated by protections in the First
Amendment's Free Exercise Clause.\23\ In other instances, religious
accommodations may be undertaken in furtherance of a secular
governmental goal that is not designed to advance or further
religion.\24\ And yet, to protect their religious practice, shelters
currently must seek individual, specific waivers under the Religious
Freedom Restoration Act or potentially under the Secretary's general
waiver authority,\25\ which can be both time consuming and burdensome.
Further, the 2016 Rule's approach discourages some religious providers
from accepting HUD funding at all, to avoid being forced to either
comply with the rule or the need to request a waiver. The large
percentage of single-sex facilities sponsored by religious
organizations that do not participate in HUD programs may reflect the
burden or perceived burden of both current HUD requirements and the
waiver process. Instead of continuing a piecemeal and ineffective way
of accounting for religious beliefs, HUD proposes a policy that will
respect the religious beliefs of shelters as they develop the
admissions and accommodations policy, provided that each policy is
consistent with state and local law. By respecting the religious
beliefs of shelters, HUD, can better provide wide availability of
shelters to participate in the program.
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\22\ Federal Law Protections for Religious Liberty, 82 FR 206
(October 6, 2017).
\23\ The protection of the Free Exercise Clause extends to acts
undertaken in accordance with sincerely held beliefs. The First
Amendment guarantees the freedom to ``exercise'' religion, not just
the freedom to ``believe'' in religion. Jurisprudence concerning
this important area of law is complex and continues to develop. See
Fulton v. City of Phila., 922 F.3d 140 (3rd Cir.), cert. granted,
2020 U.S. LEXIS 961 (U.S. Feb. 24, 2020) (No. 19-123). HUD believes
it is appropriate to take steps to ensure that rights under the Free
Exercise Clause are not infringed.
\24\ The Supreme Court has said that `` `there is room for play
in the joints' between the Clauses, some space for legislative
action neither compelled by the Free Exercise Clause nor prohibited
by the Establishment Clause.'' Cutter v. Wilkinson, 544 U.S. 709,
719 (2005) (internal quotation and citation omitted).
\25\ 42 U.S.C. 3535(q).
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Fourth, the 2016 Rule has manifested privacy issues. The current
rule gives little consideration to the shelter's need to take care of
the mental health and privacy concerns of at-risk clients, particularly
``the special needs of program residents that are victims of domestic
violence'' along with ``dating violence, sexual assault, and
stalking.'' \26\ A shelter may want to reduce unwelcome or accidental
exposure to, or by, persons of the opposite biological sex where either
party may be in a state of undress--such as in changing rooms, shared
living quarters, showers, or other shared intimate facilities--to
address privacy concerns which must be considered and respected.\27\
Such a desire, which is critical in providing care for vulnerable
populations, currently requires shelters to forego HUD assistance.
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\26\ NAHRO Comment Letter, available at:https://www.regulations.gov/document?D=HUD-2015-0104-0083.
\27\ United States v. Virginia, 518 U.S. 515, 550 n.19 (1996)
(``Admitting women to [an all-male school] would undoubtedly require
alterations necessary to afford members of each sex privacy from the
other sex in living arrangements''); Fortner v. Thomas, 983 F.2d
1024, 1030 (11th Cir. 1993) (``[M]ost people have a special sense of
privacy in their genitals, and involuntary exposure of them in the
presence of people of the other sex may be especially demeaning or
humiliating.''); Fair Housing Council v. Roommate. Com, LLC, 666
F.3d 1216, 1221 (9th Cir. 2012) (``As roommates often share
bathrooms and common areas, a girl may not want to walk around in
her towel in front of a boy.'').
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This need for privacy is especially strong among women who have
``deeper psychological issues that prevent them from cohabitating with
those of the opposite sex.'' \28\ Homeless women have all too often
been the subject of sexual abuse and assault. One study found that
``92% of a racially diverse sample of homeless mothers had experienced
severe physical and/or sexual violence at some point in their lives . .
.'' and another found that ``13% of homeless women reported having been
raped in the past 12 months and half of these were raped at least
twice. . .'' \29\ Further, between 22% and 55% of women are homeless
because of intimate partner violence.\30\ Given these
[[Page 44815]]
jarring statistics, some homeless women would be expected to distrust
and feel unsafe around biological men, even though they self-identify
as women.
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\28\ NAHRO Comment Letter, available at: https://www.regulations.gov/document?D=HUD-2015-0104-0083.
\29\ https://vawnet.org/sites/default/files/materials/files/2016-09/AR_SAHomelessness.pdf.
\30\ U.S. Department of Health & Human Services, Administration
for Children & Families, Family & Youth Services Bureau. ``Domestic
Violence and Homelessness: Statistics (2016).'' Published, June 24,
2016, accessed March 21, 2017. Available at: https://www.acf.hhs.gov/fysb/resource/dvhomelessnessstats2016 (cited by
http://womensliberationfront.org/wp-content/uploads/2019/04/MAILED-Copy-of-Hands-Across-the-Aisle-Letter-to-HUD_dated-5-1-17.pdf).
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HUD does not believe it is beneficial to institute a national
policy that may force homeless women to sleep alongside and interact
with men in intimate settings--even though those women may have just
been beaten, raped, and sexually assaulted by a man the day before. The
2016 Rule minimized the shelter's ability to protect the privacy
interest of shelter seekers, not so that the shelter can better serve
transgender individuals, but so that the shelter is forced to admit any
individual who claims to be the gender the shelter serves.
While HUD is not aware of data suggesting that transgender
individuals pose an inherent risk to biological women, there is
anecdotal evidence that some women may fear that non-transgender,
biological men may exploit the process of self-identification under the
current rule in order to gain access to women's shelters. This could
harm individuals in need of shelter by chilling their participation in
HUD programs. For example, in Alaska, ``women have told shelter
officials that if biological men are allowed to spend the night
alongside them, `they would rather sleep in the woods,' even in extreme
cold. . .with temperatures hovering around zero.'' \31\ HUD is also
aware of a pending civil complaint in Fresno, California from nine
homeless women against Naomi's House, a homeless shelter that receives
HUD funding. These women allege that the shelter enabled sexual
harassment because a biological male who self-identified as a female
entered a homeless shelter and showered with females. This individual
would ``repeatedly make lewd and sexually inappropriate comments to
some of the Plaintiffs,'' ``stare and leer at Plaintiffs while naked
and make sexually harassing comments about their bodies,'' and show
``sexual pictures and/or videos of [the individual] and mak[e] sexual
advances on some of the pictures and/or videos of [the individual] and
mak[e] sexual advances on some of the Plaintiffs.'' \32\
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\31\ Rachel D'Oro, Faith-based shelter fights to keep out
transgender women (January 11, 2019), available at:https://www.apnews.com/85494d367c2d4a38b1749f76a89f49c3.
\32\ McGee v. Poverello House, No. 1:18-cv-00768-LJO-SAB, 2018
U.S. Dist. LEXIS 189174, at *3 (E.D. Cal. Nov. 5, 2018).
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The 2016 Rule attempted to address privacy and security through
post-admission accommodations and procedures, but this has proven
unworkable for too many shelters without alternative options to address
practical and privacy concerns. Shelters operate in difficult
conditions, often with troubled clientele, through overburdened and
sometimes volunteer staff, and the current rule makes it impracticable
for some shelters to, after admitting a biological male, adequately
protect the privacy interests of their biological female clientele who
do not want to shower, undress, and sleep in the same facilities as
biological men. While HUD argued in 2016 that shelters could address
privacy concerns through ``schedules that provide equal access to
bathing facilities, and modifications to facilities, such as the use of
privacy screens and, where feasible, the installation of single
occupant restrooms and bathing facilities,'' \33\ HUD believes that
this is not an option for many shelters, whose budgets, staff, and
space are already limited.
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\33\ 81 FR 64763, September 21, 2016.
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HUD recognizes that shelters must also take special care to address
the mental health and safety needs of transgender individuals. HUD is
aware that transgender individuals experience poverty, housing
instability, mental health issues, domestic violence, and homelessness
at high rates. Given the rates of violence and mistreatment that
homeless transgender persons experience, HUD recognizes that shelter
access for transgender persons is critical. Thus, the proposed rule
requires that if a shelter denies access to a person based on a
determination of sex, the shelter must utilize the CoC's centralized or
coordinated assessment system to provide a transfer recommendation to
an alternative shelter or accommodation.
Shelters may also choose to admit individuals on criteria other
than biological sex. For example, under the proposed rule, a single-sex
facility could continue to operate under the policy set forth in the
2016 Rule. Under that policy, an intake worker at a single-sex
homelessness facility would ask an individual their gender identity,
and if the person identified themselves with the gender served by the
facility, they would be admitted. Under the proposed rule, a single-sex
facility for women could have a policy that only admits biological
women. A shelter would have the flexibility to implement this policy as
they feel appropriate, provided that they only deny an individual
seeking accommodation or access to the temporary, emergency shelters
when they have a good faith belief that individual is not of the sex
which the shelter's policy accommodates and they provide a transfer
recommendation as required under the regulation. Denial of
accommodation solely because of a person's gender identity that differs
from biological sex is not permitted.
Shelters could also have policies that follow state or local law,
such as perceived gender identity, that varies from the HUD definition
of self-identified gender identity. Other possible policies could be
based on medical transition status, active hormone therapy or state
recognized gender status. The key test for such policies is whether if
another shelter adopted a ``mirror'' policy (that is, the same policy
but directed at the other sex), any person not accommodated at one
shelter would be accommodated at the other shelter.
In practice, where people seeking shelter are asked their sex at
intake into the facility, and if they identify themselves as the sex
that is served by the shelter, they are admitted unless the shelter has
a good faith basis to doubt the consistency of the sex asserted with
the sex served by the shelter, determined in accordance with its own
policy. Where such doubt exists, the shelter could also have a list of
possible sources of evidence the shelter seeker could provide such as a
birth certificate, other identification, or medical records. This could
occur at intake or subsequently, if the shelter resident is unable to
verify their sex, the shelter would work through the centralized or
coordinated assessment system to provide a transfer recommendation for
another shelter.
This approach would better protect shelter clients as well. Under
HUD's 2016 Rule, while privacy accommodations may sometimes be
available for individuals who need additional privacy, ``alternative
accommodations can only be offered when an individual requests it, and
under these proposed regulations, housing providers are likely only
left with the option of moving the domestic violence victim resident.
But some individuals may hesitate to raise their concerns, for fear of
retaliation by the service provider or because they do not know whether
privacy accommodation is an available option. HUD believes the easier
approach would be to let shelters accommodate privacy concerns in a
[[Page 44816]]
manner that causes the least overall disruption to residents.
Finally, the 2016 Rule imposed regulatory burdens. The rule imposes
several different types of regulatory burdens. It imposes a special
document retention requirement applicable to determinations of ``sex''
that is burdensome and not supported either by statute or practice.
This burden is inconsistent with Executive Orders directing agencies to
``alleviate unnecessary regulatory burdens placed on the American
people,'' \34\ and ``manage the costs associated with the governmental
imposition of private expenditures required to comply with Federal
regulations.'' \35\ Additionally, as discussed above in the fourth
point, shelters may not have the resources to build individual privacy
screens or single occupant restrooms and bathing facilities to address
any privacy concerns that may arise.
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\34\ Executive Order 13777, ``Enforcing the Regulatory Reform
Agenda,'' 82 FR 12285, March 1, 2017.
\35\ Executive Order 13771, ``Reducing Regulation and
Controlling Regulatory Costs,'' 82 FR 9339, Feb. 3, 2017.
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These regulatory burdens could have a material impact on the
availability of homelessness services. HUD's Emergency Solutions Grants
program and other CPD programs provide a small share of the funding
that is used for emergency shelters. For example, in fiscal year 2019,
HUD's Emergency Solutions Grants program provided $290 million in
funding. In contrast, with nearly 300,000 emergency shelter beds and
costs ranging from $14 to $61 per bed-night for individuals and more
for families, overall spending for emergency shelter is several billion
dollars per year.
The lack of shelter capacity in many communities contributes to
high numbers of people who experience unsheltered homelessness. Local
governments and nonprofit organizations utilize any potential space to
use as shelter, and many times, these shelters operate under severe
financial constraints. Providing additional options for operating
single-sex facilities as proposed by this rule may encourage more
emergency shelters to participate in HUD's programs and prevent the
loss of emergency shelter capacity. The additional funding could be
used to upgrade facilities and services, improving the quality of
assistance for people experiencing homelessness.
IV. Summary of Proposed Rule
This proposed rule would revise Sec. 5.106(c)(1) to expressly
allow a recipient, subrecipient, owner, operator, manager, or provider
to establish its own policies for determining whether to restrict
access based on an individual's sex for the purposes of determining
admissions and accommodation within a single-sex facility. Such a
policy could align with, or borrow from, a state or local government's
policy for determining an individual's sex,\36\ but is not required to
do so. The rule also provides in paragraph (c)(1) that such policies
must be consistent with federal, state, and local law. Under paragraph
(c)(2) a recipient, subrecipient, owner, operator, manager, or provider
is permitted to take into account a wide variety of factors in issuing
a policy, including privacy, safety, and similar concerns.
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\36\ See, e.g., Iowa state law for determining sex designation
change. Iowa Code Ann. 144.23.
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Proposed paragraph (c)(3) would restrict how a single-sex facility
would apply the policy drafted under paragraph (c)(1) and require the
single-sex facility to apply its policy uniformly and consistently. It
would also provide that a recipient, subrecipient, owner, operator,
manager, or provider may determine 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. HUD would consider
this good faith beliefs sufficient to show that a decision maker was
not discriminating for purposes of determining compliance based on an
individual's actual or perceived gender identity in Sec. 5.105(a)(2).
HUD believes that reasonable considerations may include, but are not
limited to a combination of factors such as height, the presence (but
not the absence) of facial hair, the presence of an Adam's apple, and
other physical characteristics which, when considered together, are
indicative of a person's biological sex. A good faith determination
could also be made if a person voluntarily self-identifies as the
biological sex that is opposite that served by the single sex facility
if that is a part of its policy. In cases where a recipient,
subrecipient, owner, operator, manager, or provider has a good faith
belief that the individual is not of the biological sex served by the
single-sex facility, the recipient, subrecipient, owner, operator,
manager, or provider may request evidence of the individual's
biological sex. Evidence requested must not be unduly intrusive of
privacy, such as private physical anatomical evidence. Evidence
requested could include government identification, but lack of
government identification alone cannot be the sole basis for denying
admittance on the basis of sex.
Continuum of Care (CoC) is a regional or local planning group that
coordinates homelessness services and is generally composed of
representatives from governments and organizations that focus on
fighting homelessness. CoCs are responsible for ensuring that people
experiencing homelessness receive assistance in a coordinated and
timely fashion. Specifically, CoCs are required to create and implement
a plan that coordinates implementation of housing and service system
that meets the needs of people experiencing homelessness (Sec.
578.7(c)(1)), and the requirement for CoCs, in consultation with a
local recipient of Emergency Solutions Grants funds to operate a
coordinated entry system that provides an initial, comprehensive
assessment of needs for housing and services (Sec. 578.7(a)(8)). To
help promote these objectives, HUD provides in paragraph (d)(4) of this
proposed rule that if a single-sex facility denies access to a person
under this rule based on a good faith belief that a person seeking
access to the single-sex facility is not of the biological sex which
the shelter accommodates, a shelter must use the coordinated entry
system to provide a transfer recommendation to an alternative facility.
In addition, the rule more broadly provides that if a person objects to
the provider's policy for determining sex because of the person's
sincerely held beliefs, then the shelter must also provide a transfer
recommendation to an alternative shelter.
Finally, HUD proposes to remove paragraphs (b)(1) through (4),
inclusively, which currently enumerates the applications of the
antidiscrimination provision, in favor of a streamlined reference to
Sec. 5.105(a)(2). Section 105(a)(2) entitles equal access to HUD-
assisted housing by prohibiting determinations for housing eligibility
from being based on actual or perceived sexual orientation, gender
identity, or marital status.
The proposed rule would also eliminate the previously discussed
burdensome special document retention requirement in the current rule
applicable to determinations of ``sex.'' This proposed rule does not
prohibit any individual from voluntarily self-identifying sexual
orientation or gender identity, as it does not prohibit a shelter,
under its own policy, from recognizing such self-identification.
Other than these specified changes, the current regulations would
remain in effect. HUD believes that a combination of strong anti-
discrimination protections
[[Page 44817]]
and affording grantees a large measure of discretion in an area with
divergent, deeply held and substantially supported views offers the
broadest workable protection for individuals, including transgender
individuals.
This proposed rule would also amend Sec. 576.400(e)(3)(iii) to add
language allowing for exceptions as authorized under Sec. 5.106 to
written standards for HUD's Emergency Solutions Grant Program.
Request for Comments
1. HUD is maintaining the nondiscrimination protections from its
2012 rule, even though they lack an explicit statutory authorization,
because HUD is not aware of any relevant party that has raised any
material concerns about the 2012 rule. HUD believes all federally
supported housing opportunities should be provided to all in a
nondiscriminatory manner, including for sexual orientation and gender
identity. HUD specifically seeks comments on whether HUD should
maintain the anti-discrimination protections?
2. HUD requests comments on what are good faith considerations that
are indicative of a person's biological sex. Should HUD define what
constitutes a good faith belief for determining biological sex and what
type of evidence would be helpful for determining an individual's
biological sex? How, if at all, should government IDs be considered?
3. CoCs are responsible for creating and implementing a plan that
coordinates the housing and service system that meets the needs of
people experiencing homelessness (including unaccompanied youth) and
families and includes, shelter, housing, and supportive services (Sec.
578.7(c)(1)). HUD is proposing that for people who are denied access to
shelter because of a policy regarding admission or placement in single-
sex facilities, the shelter must provide a transfer recommendation for
individuals to the Coordinated Entry provider for the Continuum of
Care. HUD is also seeking comment on what requirements, if any, HUD
should include in the final rule to ensure that shelter policies are
coordinated and implemented in a way that allows all persons
experiencing homelessness in the geographic area (including persons
with disabilities) to be served timely and in a non-discriminatory
manner? Is the requirement of providing a transfer recommendation
unduly burdensome or does it otherwise pose operational challenges?
V. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. Under Executive Order 12866 (Regulatory Planning
and Review), a determination must be made whether a regulatory action
is significant and, therefore, subject to review by the Office of
Management and Budget (OMB) in accordance with the requirements of the
order.
The proposed rule has been determined to be a ``significant
regulatory action,'' as defined in section 3(f) of the Order, but not
economically significant under section 3(f)(1) of the Order. The docket
file is available for public inspection in the Regulations Division,
Office of General Counsel, Department of Housing and Urban Development,
451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to
security measures at the HUD Headquarters building, please schedule an
appointment to review the docket file by calling the Regulations
Division at 202-402-3055 (this is not a toll-free number). Individuals
who are deaf or hard of hearing and individuals with speech impairments
may access this number via TTY by calling the Federal Relay Service at
800-877-8339 (this is a toll-free number).
Executive Order 13771
Executive Order 13771, entitled ``Reducing Regulation and
Controlling Regulatory Costs,'' was issued on January 30, 2017. Section
2(a) of Executive Order 13771 requires an Agency, unless prohibited by
law, to identify at least two existing regulations to be repealed when
the Agency publicly proposes for notice and comment or otherwise
promulgates a new regulation. In furtherance of this requirement,
section 2(c) of Executive Order 13771 requires that the new incremental
costs associated with new regulations shall, to the extent permitted by
law, be offset by the elimination of existing costs associated with at
least two prior regulations. This proposed rule is expected to be a
deregulatory action under Executive Order 13771 by providing
flexibility for grantees in determining their policies.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (UMRA) establishes requirements for Federal
agencies to assess the effects of their regulatory actions on state,
local, and tribal governments, and on the private sector. This proposed
rule does not impose any Federal mandates on any state, local, or
tribal government, or on the private sector, within the meaning of the
UMRA.
Environmental Review
This proposed rule sets forth nondiscrimination standards.
Accordingly, under 24 CFR 50.19(c)(3), this proposed rule is
categorically excluded from environmental review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321).
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The number of entities that would be affected by this rule is limited
to entities who can legally operate single-sex facilities and would
change or establish policy as a result of the accommodation needs
addressed by this rule. HUD does not have the exact number of entities
that would be affected. However, as an example, approximately out of
the 1,900 emergency shelters are funded by HUD programs. Out of this
1,900, HUD does not know how many of those would issue a new policy.
Nor does HUD know how many of those are small entities. HUD
specifically requests from the public any information about the number
of small entities that might be impacted.
Furthermore, HUD anticipates that entities who develop a policy as
a result of this rule will generally face only a small burden in
determining and establishing an organizational policy. Accordingly, for
the foregoing reasons, the undersigned certifies that this rule will
not have a significant economic impact on a substantial number of small
entities. Notwithstanding HUD's determination that this proposed rule
would not have a significant effect on a substantial number of small
entities, HUD specifically invites comments on
[[Page 44818]]
whether it will not have a significant effect and regarding any less
burdensome alternatives to this rule that will meet HUD's objectives.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments or is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule would not have
federalism implications and would not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.
List of Subjects
24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Drug abuse,
Drug traffic control, Grant programs--housing and community
development, Grant programs--Indians, Individuals with disabilities,
Loan programs--housing and community development, Low and moderate
income housing, Mortgage insurance, Pets, Public housing, Rent
subsidies, Reporting and recordkeeping requirements.
24 CFR Part 576
Community facilities, Grant programs-housing and community
development, Grant programs-social programs, Homeless, Reporting and
recordkeeping requirements.
Accordingly, for the reasons stated above, HUD proposes to amend 24
CFR parts 5 and 576 as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
0
1. The authority citation for part 5 continues to read as follows:
Authority: 12 U.S.C. 1701x; 42 U.S.C. 1437a, 1437c, 1437d,
1437f, 1437n, 3535(d); Sec. 327, Pub. L. 109-115, 119 Stat. 2936;
Sec. 607, Pub. L. 109-162, 119 Stat. 3051 (42 U.S.C. 14043e et
seq.); E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258; and E.O.
13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 273.
0
2. In Sec. 5.100, revise the first sentence of the definition of
``Gender identity'' to read as follows:
Sec. 5.100 Definitions.
* * * * *
Gender identity means actual or perceived gender-related
characteristics. * * *
* * * * *
0
3. In Sec. 5.106, revise the section heading and paragraphs (b) and
(c), and remove paragraph (d) to read as follows:
Sec. 5.106 Access in community planning and development programs.
* * * * *
(b) Access. The admissions, occupancy, and operating policies and
procedures of recipients, subrecipients, owners, operators, managers,
and providers identified in paragraph (a) of this section shall be
established or amended, as necessary, and administered in a
nondiscriminatory manner to ensure that eligibility determinations are
made, and assisted housing is made available in CPD programs as
required by Sec. 5.105(a)(2).
(c) Admission and accommodation in temporary, emergency shelters
and other buildings and facilities with shared sleeping quarters or
shared bathing facilities--(1) Admission and accommodation policies.
Recipients, subrecipients, owners, operators, managers, or providers of
temporary, emergency shelters or other buildings and facilities with
physical limitations or configurations may make admission and
accommodation decisions based on its own policy for determining sex if
the policy is consistent with paragraphs (c)(2) through (4) of this
section. Any such policy must be consistent with federal, state, and
local law.
(2) Privacy and safety considerations. The policy of a recipient,
subrecipient, owner, operator, manager, or provider established
pursuant to paragraph (c)(1) of this section may consider privacy,
safety, and any other relevant factors.
(3) Application of the policy. A recipient, subrecipient, owner,
operator, manager, or provider must apply any policy established
pursuant to paragraph (c)(1) of this section in a uniform and
consistent manner. A recipient, subrecipient, owner, operator, manager,
or provider may deny admission or accommodation in temporary, emergency
shelters and other buildings and facilities with physical limitations
or configurations that require and are permitted to have shared
sleeping quarters or shared bathing facilities based on a good faith
belief that an individual seeking accommodation or access to the
temporary, emergency shelters is not of the sex which the shelter's
policy accommodates. If a temporary, emergency shelter has a good faith
belief that a person seeking access to the shelter is not of the sex
which the shelter accommodates, the shelter may request information or
documentary evidence of the person's sex, except that the shelter may
not request evidence which is unduly intrusive of privacy.
(4) Transfer recommendation. If a temporary, emergency shelter
denies admission or accommodations based on a good faith belief that a
person seeking access to the shelter is not of the sex which the
shelter accommodates as determined under its policy, the shelter must
use the centralized or coordinated assessment system, as defined in
Sec. 578.3 of this title, to provide a transfer recommendation to an
alternative shelter. If a person states to the temporary, emergency
shelter that the provider's policy for determining sex is inconsistent
with the person's sincerely held beliefs, including privacy or safety
concerns, then the shelter must use the centralized or coordinated
assessment system, as defined in Sec. 578.3 of this title, to provide
a transfer recommendation to an alternative shelter.
PART 576--EMERGENCY SOLUTIONS GRANTS PROGRAM
0
4. The authority for 24 CFR part 576 continues to read as follows:
Authority: 12 U.S.C. 1701x, 1701 x-1; 42 U.S.C. 11371 et seq.,
42 U.S.C. 3535(d).
Sec. 576.400 [Amended]
0
5. In Sec. 576.400, add the parenthetical ``(these policies must allow
for the exceptions as authorized under the Equal Access Rule, 24 CFR
5.106)'' at the end of paragraph (e)(3)(iii).
Dated: July 2, 2020.
Benjamin S. Carson, Sr.,
Secretary.
[FR Doc. 2020-14718 Filed 7-23-20; 8:45 am]
BILLING CODE 4210-67-P