On February 20, 2015, the U.S. Department of Housing and Urban Development (HUD) issued guidance on the appropriate placement for transgender persons in single-sex emergency shelters and other facilities. The notice, issued by HUD’s Office of Community Planning and Development (CPD) was addressed to the attention of recipients and sub-recipients of Emergency Shelter Grants (ESG); recipients and sub-recipients of Continuum of Care (CoC) funding; and to grantees of funding provided by the Housing for Persons with AIDS (HOPWA) program.
The guidance is intended to clarify HUD’s 2012, “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” rule (the “Equal Access Rule”). The 2012 rule requires recipients of HUD funding to provide housing without regard to an individual’s actual or perceived sexual orientation, gender identity, or marital status. The 2012 rule applies to recipients of HUD funding or HUD-insured housing, including Public Housing Authorities; recipients of ESG, CoC, or HOPWA funding; and mortgage lenders issuing FHA-insured loans. It does not, however, apply to private landlords or property managers.
While the Equal Access Rule noted that shelters receiving HUD funding were required to comply with its provisions, it was not clear what actions a HUD-funded shelter should take with regard to the placement of transgender persons in single-sex shelters.
HUD’s February 20, 2015, notice is intended to provide such guidance, stating that HUD assumes a provider
will place a potential client (or current client seeking a new assignment) in a shelter or facility that corresponds to the gender with which the person identifies, taking health and safety concerns into consideration. A client’s or potential client’s own views with respect to personal health and safety should be given serious consideration in making the placement. For instance, HUD assumes that the provider will place the individual in accordance with that request, consistent with health, safety, and privacy concerns. HUD assumes that a provider will not make an assignment or reassignment based on complaints of another person when the sole stated basis of the complaint is a client or potential client’s non-conformance with gender stereotypes.
With regard to inquiries into a person’s appropriate placement, the new guidance states that
Best practices suggest that where the provider is uncertain of the client’s sex or gender identity, the provider simply informs the client or potential client that the agency provides shelter based on the gender with which the individual identifies. There generally is no legitimate reason in this context for the provider to request documentation of a person’s sex in order to determine appropriate placement, nor should the provider have any basis to deny access to a single-sex emergency shelter or facility solely because the provider possesses identity documents indicating a sex different than the gender with which the client or potential client identifies. The provider may not ask questions or otherwise seek information or documentation concerning the person’s anatomy or medical history. Nor may the provider consider the client or potential client ineligible … because his or her appearance or behavior does not conform to gender stereotypes.
The notice further states that shelters must take “reasonable steps” to address the privacy concerns of clients by adding privacy partitions or curtains; providing a nearby private restroom or office; or utilizing a separate changing schedule. ESG and HOPWA recipients are permitted to use those funds to renovate emergency shelters to maximize privacy and safety.
HUD’s 2012 Equal Access Rule is available here.
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