CUNY Disability and Aging Justice Clinic's Submitted Comment in Opposition to HUD's Proposed Anti-Transgender Rule

September 22, 2020 

Submitted via www.regulations.gov

Regulations Division, Office of General Counsel 

Department of Housing and Urban Development 

451 7th Street SW, Room 10276

Washington, DC 20410-0500

Re:      Comments in Opposition to RIN 2506-AC53, “Making Admission or Placement 

Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs”   

This written comment is submitted by the Disability and Aging Justice Clinic (“DAJC” or “Clinic”) at the City University of New York School of Law in response to the Department of Housing and Urban Development’s (“HUD”) request for comment on its proposed rule change published in the Federal Register on July 24, 2020 (RIN 2506-AC53; HUD Docket No. FR-6152-P-01) entitled “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs.”

The proposed rule will allow HUD-funded, temporary, emergency “single-sex or sex-specific” shelters to make admission and accommodation decisions based on a “good faith belief” that the individual “is not of the sex which the shelter’s policy accommodates.” The proposed rule facilitates discrimination against transgender and gender non-conforming (“TGNC”) individuals by creating an arbitrary means by which shelter operators and employees may refuse access. We strongly oppose the proposed rule change and urge HUD to withdraw it in its entirety.

The DAJC advocates to enhance and promote the civil rights, autonomy, and self-determination of low-income individuals with disabilities and aging adults, and their families and support networks. The Clinic facilitates access to justice through direct legal representation, public policy advocacy, and community outreach and education. Our mission is to empower our clients as they navigate and challenge systems that seek to exclude, oppress, dehumanize, and disenfranchise. Under the supervision of attorney faculty members, students provide representation and advocacy in areas including access to government benefits and services, prisoners’ rights, adult guardianship restoration, and discrimination in access to benefits, programs, and services. 

The DAJC recognizes that the proposed rule change is a part of the current administration’s ongoing efforts to dismantle rights and protections for the LGBTIQ+ community, particularly TGNC people. This proposed rule will strip much-needed protections for TGNC persons seeking HUD-funded shelter, and will have severe consequences for disabled TGNC individuals and TGNC aging adults by compounding the discrimination that TGNC people who hold these identities already face.

For many seeking temporary housing security for reasons that may include eviction, climate disaster/extreme weather, domestic violence, intimate partner violence, or release from prison directly to shelter, shelters are the first point of accessing support. Shelter discrimination exists in a larger context of overlapping systems of oppression that disproportionately impact TGNC individuals who live at the intersection of marginalized identities such as race, disability, and aging. These systems include disparities in health outcomes, police violence, and discrimination in housing, employment, and education that perpetuate cycles of poverty, criminalization, and incarceration. 

Statistics repeatedly confirm that when TGNC individuals are excluded from shelter, they are more vulnerable to violence, murder, and other safety risks. This reality is even more stark for TGNC who live at the intersection of race, disability, and/or aging. The proposed rule is based on anti-TGNC biases and sex stereotypes, harms TGNC individuals, and will disproportionately impact disabled and/or aging TGNC people of color. In the midst of an economic, health, and housing crisis, HUD should not devote scarce agency resources to facilitating discrimination and perpetuating stereotypes. The wrongful discrimination that this proposed rule encourages will come at an immense cost to human life and dignity. 

Comments and Objections to RIN 2506-AC53 by the Disability and Aging Justice Clinic 

1.  The Proposed Rule Authorizes Discrimination on the Basis of Sex.

The proposed rule purports to leave in place requirements from the 2012 Rule that HUD-funded shelter operators must “ensure that their programs are open to all eligible individuals and families without regard to sexual orientation or gender identity.” The rule then explains that “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.” 

These assertions contradict each other. Under this reasoning, a women’s shelter can deny access to a transgender woman whose gender identity or presentation may differ from the conventional expectations of the shelter employee because of the employee’s “good faith belief” that she “is not of the sex which the shelter’s policy accommodates.” Such belief may be based either on her self-identification to the shelter employee, or on the employee’s evaluation of her “physical characteristics,” which HUD believes are “indicative of a person’s biological sex.” A cisgender woman, whose gender identity aligns with conventional expectations based on the sex she was assigned at birth, may not be refused access to this same shelter. The illogic continues as even a cisgender woman may experience discrimination based on the subjective standards imposed by any given shelter staff member who believes in “good faith” that she is not of the sex that the shelter accommodates. This treatment is discrimination with regard to gender identity—a practice that, according to a recently decided Supreme Court decision, inevitably constitutes sex-based discrimination. 

The following likely scenario illustrates the discriminatory outcome of this arbitrary “good faith belief” language: two unsheltered women who are otherwise similarly situated are seeking access to a women’s shelter. The transgender woman who does not “pass” as cisgender to a shelter employee may be denied access, while the cisgender woman cannot be turned away because her biological sex and gender expression align with a shelter employee’s expectations of what a woman should look like. Permitting shelter providers to place individuals in shelters based on a subjective “good faith belief of the[ir] sex” necessarily discriminates against transgender individuals by denying equal access to sex-specific shelters. 

In June 2020, the Supreme Court held in Bostock v. Clayton County that under Title VII of the Civil Rights Act, discrimination based on sex necessarily includes discrimination based on gender identity. The Court explained that “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cty., 140 S. Ct. 1741 (2020). While acknowledging that transgender status is a distinct concept from sex, the Court reasoned that “discrimination based on . . . transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Id at 1747. 

HUD’s proposed rule should be reconsidered in light of this decision. While the Bostock holding is limited to Title VII protections, the Court’s plain text interpretation of discrimination based on sex highlights the fallacy of prohibiting discrimination based on gender identity, but permitting placement decisions based on sex “without regard to [] gender identity,” as the proposed rule seeks to do.

HUD proposes to redefine gender identity in 24 C.F.R § 5.100 (2020) to mean only “actual or perceived gender-related characteristics,” rather than the current definition: “the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person’s perceived gender identity.” Eliminating self-identification from the definition of gender identity does not insulate the proposed rule from case law on what constitutes sex discrimination. Justice Alito acknowledges in his dissent in Bostock that the Court’s interpretation of sex discrimination is “virtually certain to have far-reaching consequences.”

Justice Alito identifies 100+ other federal statutes to which the Court’s interpretation of sex discrimination would logically extend. The Fair Housing Act’s prohibition of sex discrimination is featured as his second example. Case law confirms Justice Alito’s acknowledgement: prohibited sex discrimination under the Fair Housing Act, which governs homeless shelters that qualify as “dwellings,” includes discrimination based on non-conformity with gender stereotypes. See, e.g., Smith v. Avanti, 249 F. Supp. 3d 1194, 1201 (D. Colo. 2017). Thus, the proposed rule’s attempt to draw a distinction between illegal gender discrimination and permissible sex discrimination is illogical and not supported by law. 

2.  The Proposed Rule Violates the Administrative Procedure Act and Federal Law Because HUD Failed to Properly Consider the Imposition of Costs That This Proposed Rule Will Have on the American Public and the Adverse Impact It Will Have on TGNC Individuals Who Live at the Intersections of Disability, Race, and Aging.  

The DAJC also opposes the proposed rule because HUD failed to conduct a proper analysis of the costs to the public, as mandated by the Administrative Procedure Act and applicable Executive Orders. See, e.g., Exec. Order No. 12866, 58 Fed. Reg. 51735 (1993) (requiring agencies to assess all costs and benefits of regulation, both quantitative and qualitative, and propose regulations upon a reasoned determination that the benefits justify the costs).  

Under the Administrative Procedure Act, when an agency rescinds a regulation it must explain the evidence underlying its decision and offer a rational connection between the facts found and the choice made. See Motor Vehicles Mfrs. Ass’n v. State Farm Ins., 463 U.S 29, 43 (1983). The Supreme Court has held that agencies must “examine the relevant data” in rescinding or adopting a regulation; “entirely failing to consider an important aspect of a problem” can render an agency action arbitrary and capricious. Id. 

As discussed in more detail below, HUD fails to consider the social and economic costs of permitting wrongful discrimination against TGNC people who live at the intersections of disability, race, and aging. These include immeasurable social costs in the form of increased social exclusion, interpersonal violence, poverty, over-incarceration, population health inequality, and loss of life due to anti-transgender discrimination. Many of these unacceptable social costs also have quantifiable financial costs to the public, such as the healthcare and economic costs of morbidity and mortality caused by stigma-induced stress for TGNC populations. 

The proposed rule will also have economic and administrative costs for HUD-funded shelters. The proposed rule eschews the current rule’s consistent national standard; [NMC1] as a result, shelters will need to expend resources to ensure that any policies they enact in accordance with the proposed rule do not conflict with existing federal, state, and local antidiscrimination laws—many of which prohibit gender identity discrimination in housing. Shelters will also need to expend financial resources on legal advice and litigation fees if they engage in discriminatory conduct in reliance on the new rule. In addition to these uncontemplated costs, the proposed rule entirely fails to consider how removing 24 C.F.R § 5.106’s provisions ensuring equal access to CPD-funded programs (“Equal Access Provisions”) would disproportionately harm multiply marginalized TGNC individuals.

HUD asserts that restricting shelter access to TGNC individuals “better resolves the various equities involved within the shelter context than HUD's 2016 Rule.” This is a dangerous mischaracterization. Instead, the proposed rule exacerbates existing inequities in shelter systems and permits additional discrimination against TGNC shelter seekers who already experience high levels of stigmatization and violence. Doing so will compound the discrimination faced by TGNC people who live at the intersection of disability, race, and aging—individuals who already face substantial barriers to accessing safe shelter and essential services. 

a.  Transgender and Gender Non-Conforming Disabled and Aging People of Color 

Authorizing discrimination against TGNC individuals seeking shelter will disproportionately impact TGNC people of color, which necessarily includes disabled and/or aging TGNC individuals. Homelessness is a racial justice issue. People of color are discriminatorily impacted by homelessness: Black Americans are three times more likely to experience homelessness than the general population, Native Americans are four times more likely, and Pacific Islanders are nine times more likely. 

The 2015 U.S Transgender Survey (“2015 survey”) captured the ways in which TGNC people of color experience deeper and broader patterns of discrimination than white respondents and the U.S population. While respondents were overall more than twice as likely as the U.S. population to be living in poverty, people of color, including Latino/a (43%), American Indian (41%), multiracial (40%), and Black (38%) respondents, were more than three times as likely as the U.S. population to be living in poverty. The unemployment rate among TGNC people of color is four times higher than the U.S rate. Undocumented respondents were also more likely to face severe economic hardship and violence than other respondents, with one half of undocumented TGNC individuals having experienced homelessness in their lifetime, one quarter having been physically attacked, and 68% having faced intimate partner violence. 

The 2015 survey’s Report on the Experience of Black Respondents underscored how Black TGNC people experience higher rates of sexual violence, poverty, and homelessness, and feel less comfortable reaching out to homeless shelters, medical professionals, and police. One in five Black respondents had recently experienced homelessness because of being transgender, and Black transgender women were more than twice as likely than white transgender women to be denied access to a shelter. Moreover, while 58% of all respondents reported being denied equal treatment or service, verbally harassed, and/or physically attacked in the past year, this rate was higher for disabled (69%), Middle Eastern (70%), multiracial (70%), and American Indian (69%) respondents. 

While more research is needed into the specific experiences of TGNC people of color who live at the intersection of disability and aging, this currently available data, along with an understanding of disability and transgender history,[NMC2]  make it clear that each one these populations are impacted by systemic oppression and are vulnerable to social exclusion. Thus, disabled, homeless TGNC people of color will experience some of the most severe consequences of this discriminatory proposed rule because these individuals must navigate multiple layers of structural inequality in meeting their basic needs. 

i.  Disability

Despite the fact that people with disabilities are at an increased risk of becoming homeless, the proposed rule does not consider the potential impact on shelter seekers who are TGNC and disabled. The 2015 survey revealed that 39% of TGNC people have a disability as defined by the American Community Survey, as compared to 15% of the U.S population. While some disability rates were consistent with rates in the U.S population (e.g. hearing or vision impairment), the 2015 survey found that TGNC individuals were six times more likely to have “serious difficulty concentrating, remembering, or making decisions because of a physical, mental, or emotional condition” and nearly four times more likely to have “difficulty doing errands alone, such as visiting a doctor’s office or shopping, because of a physical, mental, or emotional condition.” 

TGNC people with disabilities experience disproportionately poor health outcomes and heightened barriers to economic stability, housing, and employment. The 2015 survey highlighted that TGNC people with disabilities were more likely to experience serious psychological distress, at a staggering rate of 59% of respondents. This rate is nearly twice that of non-disabled respondents and 12 times the rate of the general U.S population. According to the 2015 survey, psychological distress is “associated with a variety of experiences of rejection, discrimination, and violence”—precisely the conduct that this proposed rule authorizes and encourages. 

For many disabled TGNC individuals, the impact of discrimination and psychological distress is a matter of life or death: 54% of TGNC people with disabilities have attempted suicide in their lifetime—nearly 12 times the attempted suicide rate in the U.S population. TGNC people with disabilities also face higher rates of economic and housing instability and mistreatment: according to the 2015 survey, 45% of TGNC people with disabilities live in poverty, one quarter are unemployed, and almost one in 10 have been evicted from housing because of anti-transgender bias. 

ii.  Aging

The proposed rule also fails to consider its harmful impact on the growing community of TGNC individuals who are aging. Currently, 1.4 million adults identify as transgender or gender non-conforming. The LGBT population over the age of 65 is expected to grow to as many as 4.7 million individuals by 2030; with 5% of LGBT Americans identifying as transgender, that amounts to 235,000 transgender people over the age of 65 by 2030. 

As is true for the larger US population, disability rates for TGNC people increase with age. According to a 2011 study by the National Institute of Health and the National Institute on Aging, 62% of transgender adults aged 50 and older have a physical, mental, or emotional disability. Older transgender adults also report high rates of clinical depression (48%) and anxiety (39%). 

Older adults are more likely to be economically vulnerable, and therefore at risk of homelessness. A 2015 analysis of federal and state poverty data found that 45% of adults aged 65 and older had incomes below 200% of the poverty threshold. LGBT older people are four times less likely to have children, far more likely to have experienced discrimination and stigma, and are more likely to face poverty and homelessness. Former HUD Assistant Secretary for Policy Development and Research Raphael Bostic acknowledged that LGBT elders face an “elevated risk of being forced into isolation, hostile living environments, or even homelessness.”  Older homeless individuals face a unique set of challenges, such as loss of strength and reduced mobility, that makes it more difficult to manage living on the street or in physically inaccessible homeless shelters (e.g. those with bunk beds or stairs) and to travel distances between essential food, housing, or social services. 

3. The Proposed Rule’s Transfer Provision Will Unduly Burden Disabled TGNC Individuals and Aging TGNC People of Color By Making It Even More Difficult To Access Safe and Appropriate Shelter.

HUD’s proposed requirement that shelters provide a recommendation to an alternative placement for TGNC individuals who are turned away from shelters is unduly burdensome on shelter-seekers. The burden of this proposed transition requirement will exacerbate the vulnerability that disabled and aging TGNC people already face in seeking shelter. More specifically, HUD is seeking additional comments “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.” Additional changes to the proposed transfer recommendation requirement, however, cannot alleviate the undue burden that the proposed rule will have on TGNC individuals. 

First, the proposed transfer recommendation requirement is fundamentally removed from the lived experiences of TGNC shelter-seekers. By purporting to create a process for recommending a transfer to an alternative placement for TGNC individuals who are turned away, HUD merely places additional burdens that will worsen the vulnerability that disabled and aging TGNC individuals already face in seeking shelter, as discussed in more detail below.  

Second, while HUD purports to recognize that “shelters must also take special care to address the mental health and safety needs of transgender individuals,” the proposed rule contradicts this sentiment. In proposing this rule change, HUD ignores the documented extent that transgender individuals experience poverty, mental health issues, domestic violence, and housing instability and homelessness at higher rates than the general population. Given the rates of violence and abuse that homeless TGNC persons experience, greater protections and resources, not fewer, are warranted. 

a.  The Transfer Provision Language of the Proposed Rule Will Exacerbate the Already Immense Barriers that TGNC Individuals Face When Trying to Access Safe Emergency Housing. 

The proposed transfer recommendation requirement will exacerbate TGNC homelessness— a social crisis that is only growing. According to a survey from the National Alliance to End Homelessness, transgender homelessness has increased by 88% in the past 4 years, and 63% of transgender homeless people are unsheltered. Due in large part to the ongoing discrimination TGNC individuals face, nearly a third of TGNC individuals have experienced homelessness at some point in their lifetime. Currently, it is estimated that 20% of TGNC individuals do not have secure housing and may require shelter services.

Statistics overwhelmingly confirm that TGNC individuals face extensive barriers to accessing safe emergency shelter. TGNC people are often denied access to shelters due to their gender identity, particularly in single-gender shelters that lack a policy regarding gender diversity. According to a 2020 survey from the Center for American Progress (CAP), 87% of TGNC individuals reported that it would be difficult to impossible to access an alternative shelter if they were turned away from their nearest shelter location. 

TGNC individuals have historically been excluded from single-gender shelters, which leaves them vulnerable to safety risks, violence, and murder. At the time of this proposed rule change, TGNC individuals are already more likely to experience sexual assault, with nearly half of respondents in the 2015 survey having reported being sexually assaulted in their lifetime; this number is even higher for TGNC people with disabilities, TGNC people who have experienced homelessness, TGNC people of color, and undocumented TGNC people. As a baseline, compared to non-LGBTIQ+ homeless people, LGBTIQ+-identifying homeless people generally face higher levels of sexual assault—particularly youth and TGNC individuals. 

b.  Disabled and Aging TGNC People Will Be Disproportionately Impacted Because Their Access Needs Limit Their Shelter Options.  

The harm caused by authorizing a shelter to refuse entry to TGNC individuals will not be offset by the proposed rule’s transfer recommendation requirement. Disabled and aging individuals already face significant barriers to navigating shelter systems and accessing appropriate shelters that accommodate their access needs. As a result, many go unsheltered: the Coalition for the Homeless interviewed unsheltered individuals in New York City and found that two-thirds of this population had mental health needs, and one third had multiple disabling conditions that were “doubtless exacerbated by sleeping rough.” 

In New York City alone, there are almost 60,000 people in the municipal shelter system, most of whom are disabled and/or aging. For example, 67% of single adults, 78% of adult families, and 51% of families with children have a disability or condition that may require a reasonable accommodation to ensure access to shelter and shelter-related services, and the number of single adult shelter residents over the age of 65 doubled from 2014 to 2019. New York City is one of the only U.S. cities in which there is a legal right to shelter for all single adults, and a 2017 settlement requires the city to make shelters accessible to people with disabilities and provide reasonable accommodations such as facility transfers. Despite this legal right to shelter, disabled and aging shelter-seekers in New York City still face barriers to accessing shelter because of flawed intake systems, difficulty securing supporting medical documentation for reasonable accommodation requests, or incorrect reasonable accommodation determinations that require time and resources to challenge. 

Take for example 63-year old Alvin Peterson, who was homeless for nearly a week in December 2018 after his shelter refused to let him bring his life-sustaining oxygen machine inside the shelter, or Jamie Langsbury, a gender-queer 27-year-old who was laughed at and hung up on after requesting a reasonable accommodation for her brain injury during a shelter intake process. The result of this inaccessibility is increased street homelessness for disabled and aging individuals.

The experiences of homeless disabled New Yorkers illustrate the danger of allowing shelters to add another layer of inaccessibility to an already flawed system. Disabled transgender adults have access needs that restrict the number of shelters that are safe and appropriate. This number should not be further limited by a shelter’s unwillingness to accommodate them based on a “good faith” belief that they are TGNC.

Further, HUD’s proposed rule change’s transfer recommendation requirement would likely have an outsized impact on those turned away in rural areas or small towns, underscoring a significant lack of access to alternative shelters. In 2017, CAP’s nationally representative sample of LGBTQ people found that LGBTQ people who live in non-metropolitan areas such as rural areas or small towns are particularly at risk of being unable to find alternative shelter: 76% stated it would be somewhat difficult (14%), very difficult (33%), or not possible (29%) to find alternative homeless shelter if turned away. For LGBTQ people in metropolitan areas, the percentage of respondents was still staggeringly high, with 57% reporting that it would be at least somewhat difficult to find an alternative shelter or accommodation if turned away. Allowing for the denial of shelter based on gender identity would worsen the circumstances for many who have few other options for alternative accommodations. 

The requirement of providing a transfer recommendation would also burden those denied shelter because of the sheer distance between a first shelter option and an alternative option, especially for disabled TGNC people in rural areas. CAP data highlights that “a majority of individuals who are aware of alternative shelter options would have to travel more than 10 miles to reach them—a problem compounded when the data are broken down by race, ethnicity, and gender identity.” 

For example, a transgender disabled individual seeking shelter and who was denied access to the lone shelter in Ponderay, Idaho—located in a rural area near the western border of Washington state—would have to travel 50 miles south to the nearest alternative shelter in Coeur d'Alene, Idaho, and 70 miles to the second nearest alternative in Spokane, Washington. For many TGNC people with disabilities, mobility barriers compound the effect of HUD’s transfer provision, and because the availability and cost of public transit is often a significant barrier, traveling extremely long distances to reach another accommodation would be especially prohibitive. There are many areas like northwestern Idaho, where there are few, if any, alternative options for TGNC individuals who are refused access to their nearest shelter. The proposed rule change will mean that many individuals will go without shelter at all.

Shelters should be equipped to accommodate individuals most in need. Ensuring that disabled TGNC people are served in a timely and non-discriminatory manner means just that—HUD should work to maintain, not dismantle, protections that prevent discrimination against TGNC individuals. As such, HUD must remove, not produce, additional barriers for TGNC individuals to access shelter and accommodation.

Conclusion 

The DAJC urges HUD to withdraw the proposed rule in its entirety to ensure that TGNC people can safely access emergency and temporary housing without discriminatory barriers. Moving forward with this proposed rule change is particularly cruel in the midst of the health, housing, and economic crises exacerbated during the COVID-19 pandemic. 

Thank you for the opportunity to submit comments on the Notice of Proposed Rulemaking for RIN 2506-AC53. Please do not hesitate to contact Natalie M. Chin at natalie.chin@law.cuny.edu, Victoria Pilger at victoria.pilger@live.cuny.edu or Jeremy Chan-Krausher at 

jeremy.chan-kraushar@live.law.cuny.edu to provide further information.

Sincerely, 

Alison Barkoff
Director of Advocacy

Center for Public Representation 

Lydia X. Z. Brown
Director of Policy, Advocacy, & External Affairs

Autistic Women & Nonbinary Network 

Jeremy Chan-Kraushar
Legal Intern
City University of New York School of Law 

Disability and Aging Justice Clinic

Natalie M. Chin

Assistant Professor of Law

Co-Director
Disability and Aging Justice Clinic 

City University of New York School of Law 

Sam Crane

Legal Director

Autistic Self Advocacy Network

Kevin Cremin
Director of Litigation for Disability and Aging Rights

Mobilization for Justice (MFJ)

Sharon daVanport
Executive Director
Autistic Women & Nonbinary Network 

Rebekah Diller 

Clinical Professor of Law

Co-Director
Cardozo Bet Tzedek Legal Services

Cardozo Law School 

Beth Goldman
President & Attorney-In-Charge
New York Legal Assistance Group (NYLAG)

Margarita Guzmán 
Executive Director
Violence Intervention Program

Kate Hamilton
Interim Executive Director
Disability Rights Advocates

Prianka Nair
Assistant Professor of Clinical Law

Co-director
Disability and Civil Rights Clinic:

Advocating for Adults with Intellectual and Developmental Disabilities

Brooklyn Law School 

Victoria Pilger
Legal Intern
City University of New York School of Law 

Disability and Aging Justice Clinic

Victoria Rodríguez-Roldán

Senior Policy Manager

AIDS United 

Leslie Salzman 

Clinical Professor of Law

Co-Director
Cardozo Bet Tzedek Legal Services

Cardozo Law School