Attorney General Becerra Condemns Trump Administration Proposal That Would Allow Discrimination Against Transgender Americans Seeking Shelter

SACRAMENTO – California Attorney General Xavier Becerra today joined a coalition of 23 attorneys general in a comment letter condemning a proposed rule by the Trump Administration that would allow discrimination against transgender Americans seeking shelter. Reversing course on previous protections, the proposal would permit homeless shelter operators to establish policies that ignore gender identity and subjectively deny access based on their own perceptions of someone’s sex. In the comment letter, the coalition urges U.S. Department of Housing and Urban Development (HUD) Secretary Ben Carson to withdraw the deeply flawed and unlawful proposal that threatens to inflict substantial, needless harm on transgender and gender nonconforming individuals across the country.

“Instead of confronting the pandemic, the Trump Administration continues to demonize and punish the most vulnerable among us,” said Attorney General Becerra. “We can’t accept that. It’s going to take all of us working together and looking after each other to get through this unprecedented crisis. That includes stepping up to ensure transgender Americans can access shelter and critical social services. We’re calling on Secretary Carson to immediately withdraw this discriminatory proposal. Nobody should be forced out onto the street because of the Trump Administration’s bigotry.”

Under the proposed rule, certain HUD programs, including single-sex homeless shelter operators, will be able to establish policies to shelter individuals based on their subjective perceptions of a person's sex instead of gender identity. The proposal reverses course on previously established guidance and is based on misleading, anecdotal accounts that “non-transgender, biological men” may exploit the self-identification standard to gain access to women’s shelters to harass women. However, there is no data or other evidence indicating that such a problem actually exists or poses a real risk, and ignores the real, substantiated risks that transgender individuals face when forced into shelters for another gender. Instead, the proposal opens the door for shelter operators to discriminate against transgender individuals based on “factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics.” As a result, the proposed rule will subject all individuals seeking shelter in single-sex facilities, including cisgender individuals, to unwarranted and unwelcome scrutiny of their physical appearance, particularly if they do not fit into certain gender stereotypes. In promulgating the proposed rule, HUD itself admitted that the agency does not know how the proposed changes could be applied in a nondiscriminatory manner. Further, the proposal aims to sidestep legal precedent affirmed nationwide by the U.S. Supreme Court that prohibits discrimination based on gender identity and diverges from protections already guaranteed under the California Fair Employment and Housing Act. Temporary and emergency shelters often provide the best access point for individuals seeking safe housing and access to social service supports, a need made even more critical during the current pandemic and economic crisis. 

In the comment letter, the coalition asserts that the proposed rule:

• Offers no justification for ignoring the substantial evidence that supported the existing rule and use of gender identity;
• Fails to address the impact of the proposed changes on the safety of transgender and gender nonconforming individuals;
• Is oblivious to individuals that do not fit a male/female binary and how the rule would apply to such individuals;
• Ignores the overwhelming evidence that housing transgender women in women’s shelters has proven to be an effective and safe option for individuals facing homelessness; and
• Is impractical and cannot be realistically implemented.

Attorney General Becerra is committed to fighting discriminatory housing policies and upholding protections for those living in California and throughout the country. Last year, Attorney General Becerra joined a coalition of attorneys general seeking to defend the previous federal guidance allowing equal and consistent access to shelters for transgender and gender nonconforming individuals. Earlier this year, the Attorney General sent a comment letter slamming the Trump Administration’s attack on housing protections aimed at combatting segregation. He also led a multistate coalition in fighting back against a Trump Administration proposal aimed at undermining efforts to combat banking discrimination through the Community Reinvestment Act. Last year, the Attorney General highlighted the harmful effects of discriminatory lending practices in an amicus brief supporting the City of Oakland in a case against Wells Fargo. He also urged HUD to withdraw a proposed rule on housing assistance eligibility, which would potentially put tens of thousands of Californians at risk of eviction.

In filing the comment letter, Attorney General Becerra joins the attorneys general of Illinois, Colorado, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Washington, Wisconsin, and the District of Columbia. 

A copy of the comment letter is available here.