Federally Funded Shelters Cannot Use Religious Objections to Exclude Transgender People

On September 20th, the Department of Housing and Urban Development (HUD) published an important regulation, requiring equal access for transgender and gender non-conforming people to federally-funded shelters and programs administered through the Department’s Office of Community Planning and Development.

This rule clarifies and strengthens a 2012 rule that opened HUD programs to eligible people and families, regardless of their sexual orientation, gender identity, or marital status. Despite its significant impact, the 2012 rule intentionally left open the question of whether and how transgender people should be accommodated in gender-specific shelters and HUD programs with shared sleeping and bathing facilities. The new regulation clarifies that covered shelters cannot discriminate against any person on the basis of their real or perceived gender identity, which means, among other things, that shelter placement must be based on an individual’s gender identity—not on their sex assigned at birth—even in gender-specific shelters and even where those shelters have shared sleeping or bathing facilities.

This rule and its many protections are a much needed victory for transgender communities, given their disproportionately high rates of poverty, homelessness, and experiences of discrimination in shelters and nearly every other area of their lives. According to the 2011 National Transgender Discrimination Survey—as a result of discrimination and mistreatment in employment, education, housing, healthcare, and the criminal legal system, among other areas—transgender people are four times more likely than their non-transgender peers to have incomes below $10,000, with even higher rates for transgender communities of color.

According to the same survey, nearly one in three transgender people who tried to access shelters were turned away on the basis of their gender identity, and 42% were forced to stay in facilities that did not match their gender identity. A 2016 survey by the Center for American Progress and the Equal Rights Center found that only 30 of 100 shelters in four states said they were willing to house transgender women with other women.

In addition to these important protections, the rule is significant for another reason: in it, HUD responds boldly to a question about how they plan to handle programs and facilities that may claim the rule places a significant burden on their religious liberty or the religious liberty of other shelter residents. The agency responded with a strong statement on their commitment to protecting transgender shelter seekers:

“The exclusion of an individual or family from CPD-funded shelter because the individual is transgender or the family has one or more transgender members is inconsistent with HUD’s mission to ensure decent housing and a suitable living environment for all […]

It is incumbent on HUD to ensure that the regulations governing its housing programs make clear that such arbitrary exclusion, isolation, and ostracism will not be tolerated in HUD-assisted housing and shelters. HUD would not tolerate denial of access, isolation, or ostracism on the basis of race, color, national origin, or disability relating to one shelter resident in order to accommodate the religious views of another shelter resident. The same is true with respect to the treatment of transgender and other gender nonconforming persons.”

HUD’s commitment to these protections is vital, given ongoing efforts by conservatives to pass laws that would exempt people and organizations from following nondiscrimination laws, as long as they cite a religious or moral belief to the contrary—and because of the significant resources that local, state, and federal governments expend to support faith-based shelters and social service providers.

Through this rule, the federal government is saying clearly, just as it did in 2012, that the rights of transgender people seeking access to shelter must take priority over an individual person or organization’s objection to their existence—and that protecting transgender communities from discrimination should be a priority for all HUD-funded programs.