[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Rules and Regulations]
[Pages 64763-64782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22589]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 5
[Docket No. FR 5863-F-02]
RIN 2506-AC40
Equal Access in Accordance With an Individual's Gender Identity
in Community Planning and Development Programs
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: Through this final rule, HUD ensures equal access for
individuals in accordance with their gender identity in programs and
shelter funded under programs administered by HUD's Office of Community
Planning and Development (CPD). This rule builds upon HUD's February
2012 final rule entitled ``Equal Access to Housing in HUD Programs
Regardless of Sexual Orientation or Gender Identity'' (2012 Equal
Access Rule), which aimed to ensure that HUD's housing programs would
be open to all eligible individuals and families regardless of sexual
orientation, gender identity, or marital status. The 2012 Equal Access
Rule, however, did not address how transgender and gender non-
conforming individuals should be accommodated in temporary, emergency
shelters, and other buildings and facilities used for shelter, that
have physical limitations or configurations that require and that are
permitted to have shared sleeping quarters or shared bathing
facilities. This final rule follows HUD's November 2015 proposed rule,
which addressed
[[Page 64764]]
this issue and solicited public comment on measures to ensure that
recipients and subrecipients of CPD funding--as well as owners,
operators, and managers of shelters and other buildings and facilities
and providers of services funded by CPD--grant equal access to such
facilities and services to individuals in accordance with an
individual's gender identity.
This rule amends HUD's definition of ``gender identity'' to more
clearly reflect the difference between actual and perceived gender
identity and eliminates the prohibition on inquiries related to sexual
orientation or gender identity, so that service providers can ensure
compliance with this rule. The removal of the prohibition on inquiries
related to sexual orientation or gender identity does not alter the
requirement to make housing assisted by HUD and housing insured by the
Federal Housing Administration (FHA) available without regard to actual
or perceived sexual orientation or gender identity. Lastly, without
changing the scope of the requirement to provide equal access without
regard to sexual orientation, this rule makes a technical amendment to
the definition of ``sexual orientation,'' which HUD adopted from the
Office of Personnel Management's (OPM) definition of the term in 2012,
to conform to OPM's current definition.
In order to ensure that individuals are aware of their rights to
equal access, HUD is publishing elsewhere in this issue of the Federal
Register for public comment, in accordance with the Paperwork Reduction
Act of 1995, a document entitled ``Equal Access Regardless of Sexual
Orientation, Gender Identity, or Marital Status'' for owners or
operators of CPD-funded shelters, housing, facilities, and other
buildings to post on bulletin boards and in other public spaces where
information is typically made available.
DATES: Effective: October 21, 2016.
FOR FURTHER INFORMATION CONTACT: Norm Suchar, Director, Office of
Special Needs Assistance Programs, Office of Community Planning and
Development, Department of Housing and Urban Development, 451 7th
Street SW., Washington, DC 20410-7000; telephone number 202-708-4300
(this is not a toll-free number). Persons with who are deaf or hard of
hearing or have speech impairments can access this number through TTY
by calling the Federal Relay Service at 800-877-8339 (this is a toll-
free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. HUD's Previous Efforts To Ensure Equal Access
On February 3, 2012, at 77 FR 5662, HUD issued its 2012 Equal
Access Rule, which defined the terms ``sexual orientation'' and
``gender identity,'' and required that HUD-assisted housing, including
all housing funded by CPD, and housing insured by FHA be made available
to individuals and families without regard to actual or perceived
sexual orientation, gender identity, or marital status. The 2012 Equal
Access Rule also generally prohibited inquiries into sexual orientation
or gender identity for the purpose of determining eligibility for, or
availability of, such housing. In the 2012 Equal Access Rule, HUD
declined to adopt a national policy on the placement of transgender
persons in temporary, emergency shelters with shared sleeping quarters
or shared bathing facilities, deciding instead to conduct research and
monitor its programs to determine whether additional guidance or
national policy was needed to ensure equal access for transgender and
gender nonconforming persons.\1\ HUD also decided to conduct a similar
review to determine whether additional guidance was needed with regard
to the prohibition on inquiries.
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\1\ Gender nonconforming persons are persons who do not follow
other people's ideas or stereotypes about how they should look or
act based on their sex assigned at birth.
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As a result of its review, HUD determined that the 2012 Equal
Access Rule did not adequately address the significant barriers faced
by transgender and gender nonconforming persons when accessing
temporary, emergency shelters and other facilities with physical
limitations or configurations that require and are permitted to have
shared sleeping quarters or bathing facilities. Specifically, HUD found
that transgender and gender nonconforming persons continue to
experience significant violence, harassment, and discrimination in
attempting to access programs, benefits, services, and accommodations.
For instance, at a listening session on lesbian, gay, bisexual, and
transgender (LGBT) issues conducted with the U.S. Interagency Council
on Homelessness, homeless service providers reported that transgender
persons are often discriminatorily excluded from shelters or face
dangerous conditions in the shelters that correspond to their sex
assigned at birth. Some commenters reported that, if given the choice
between a shelter designated for assigned birth sex or sleeping on the
streets, many transgender shelter-seekers would choose the streets.
HUD also investigated individual cases where transgender persons
were not provided equal access as required by the 2012 Equal Access
Rule, or they faced unlawful discrimination under the Fair Housing Act.
HUD also reviewed national research that revealed that lack of access
to shelter for transgender and gender nonconforming persons,
particularly those who were also homeless youths, was a pervasive
problem and reviewed the efforts of other Federal agencies to provide
equal access to transgender and gender nonconforming persons. HUD found
that multiple agencies prohibit discrimination on the basis of sexual
orientation and gender identity and also require that grant recipients
treat transgender persons consistent with their gender identity.
Specifically, HUD found guidance from other Federal agencies supporting
the position that grant recipients could accommodate transgender
individuals in accordance with their gender identity in Federal
programs, including those program that funded single-sex facilities.
On February 20, 2015, CPD issued guidance, entitled ``Appropriate
Placement for Transgender Persons in Single-Sex Emergency Shelters and
Other Facilities'' (CPD-15-02), which applied to the following CPD
programs: Housing Opportunities for Persons With AIDS (HOPWA),
Emergency Solutions Grants (ESG), and Continuum of Care (CoC). This
guidance clarified that HUD expected recipients and subrecipients under
these programs to base placement decisions on the gender with which a
person identifies--and not on another person's stereotype-based
complaints--taking into consideration health and safety concerns and
giving serious consideration to the transgender or gender nonconforming
person's own personal health and safety concerns. The guidance also
outlined best practices for providers.
B. The November 2015 Proposed Rule
On November 20, 2015, at 80 FR 72642, following careful review of
information about the treatment of transgender persons in temporary,
emergency shelters, HUD proposed a second Equal Access rule, entitled
``Equal Access in Accordance with an Individual's Gender Identity in
Community Planning and Development Programs'' (CPD Equal Access). In
this rulemaking, HUD proposed to add a new section to its regulations
in 24 CFR part 5 that would require recipients and subrecipients of
assistance under CPD programs--as well as owners, operators,
[[Page 64765]]
and managers of shelters and other buildings and facilities and
providers of services funded in whole or in part by CPD programs--to
provide equal access to programs, benefits, services, and
accommodations in accordance with an individual's gender identity.
Specifically, the rule proposed to add to 24 CFR part 5 a new Sec.
5.106, which would contain equal access provisions tailored to CPD
programs. Section 5.106(a) proposed to identify the scope of its
coverage as including recipients and subrecipients of assistance under
the following CPD programs: HOME Investment Partnerships (HOME) (24 CFR
part 92), Community Development Block Grant (CDBG) (24 CFR part 570),
HOPWA (24 CFR part 574), ESG (24 CFR part 576), CoC (24 CFR part 578),
as well as owners, operators, managers of shelters and other buildings
and facilities and providers of services funded in whole or in part by
any of these programs.
Section 5.106(b) proposed to require CPD recipients, subrecipients,
owners, operators, managers, and providers to establish or amend, as
necessary, and administer program admissions, occupancy, and operating
policies and procedures, including policies and procedures to protect
individuals' privacy and security, so that equal access to programs,
shelters, other buildings and facilities, benefits, services, and
accommodations are provided to individuals in accordance with their
gender identity. That section also proposed to require that such equal
access be provided in a manner that affords equal access to the
individual's family.
Section 5.106(c) proposed to require that the placement and
accommodation of individuals in facilities that are permitted to be
single-sex must be made in accordance with the individual's gender
identity. The proposed rule provided that, under narrow circumstances,
a written case-by-case determination could be made as to whether an
alternative accommodation is necessary to ensure health and safety. The
proposed rule contained a prohibition for such a determination to be
based solely on a person's actual or perceived gender identity or on
complaints of other shelter residents when those complaints are based
on actual or perceived gender identity. It also proposed to prohibit
the denial of appropriate placement based on a perceived threat to
health or safety that can be mitigated some other, less burdensome way
(e.g., by providing the transgender shelter seeker the option to use
single occupant bathing facilities). Lastly, the rule proposed that, to
avoid unwarranted denials of placement in accordance with an
individual's gender identity, decisions to provide accommodations based
on concern for the health and safety of the individual seeking
accommodations should be based on the individual's own request to be
otherwise accommodated.
Section 5.106(d) proposed to require that when a case-by-case
determination based on health and safety is made under Sec. 5.106(c),
the entity providing the alternative accommodation must provide either
(1) equivalent alternative accommodation, benefits, and services or (2)
a referral to a comparable alternative program with availability that
meets the needs of the individual.
Section 5.106(e) proposed to require recipients, subrecipients, or
providers to keep records of compliance with paragraphs (b) and the
case-by-case determinations under paragraph (c) of this section,
including the facts, circumstances, and reasoning relied upon that lead
to any alternative admission, accommodation, benefit, or service to an
individual and the individual's family; the facts and circumstances
regarding the opportunities to access alternative accommodations
provided to an individual and the individual's family; and the outcomes
regarding referral to an alternative program of an individual and the
individual's family.
In addition, the rule proposed to amend the definition of ``gender
identity'' at Sec. 5.100 to separate the definitions of ``actual'' and
``perceived'' gender identity. In brief, the rule proposed to replace
HUD's current definition, which mirrored the definition in the Matthew
Shepard/James Byrd Hate Crimes Prevention Act of 2009 (Public Law 114-
38, approved October 28, 2009) and instead adopt a definition that
clarified the difference between actual and perceived gender identity.
Lastly, the proposed rule sought to remove the prohibition on
inquiries provision at Sec. 5.105(a)(2)(ii), which prohibited
providers in most circumstances from asking individuals their sexual
orientation or gender identity. HUD reasoned that the provision raised
several legitimate questions about implementation, and its removal
would allow temporary, emergency shelters or other buildings and
facilities with physical limitations or configurations that require and
are permitted to have shared sleeping quarters or shared bathing
facilities to ask an individual's gender identity for nondiscriminatory
purposes, such as to determine the appropriate placement for the
individual or the number of bedrooms to which a household is entitled.
C. Recent Developments in the Interpretation of Federal Law and
Applicable Research
After HUD issued the November 2015 proposed rule, the Center for
American Progress released a new study specifically focusing on
discrimination experienced by transgender individuals seeking access to
shelters, the Department of Justice (DOJ) and the Department of
Education issued guidance for educators on providing equal access for
transgender students in schools, and the Department of Health and Human
Services issued a final rule to ensure equal access to health programs
and activities administered by that Department or established under
title I of the Affordable Care Act.
On January 7, 2016, the Center for American Progress released the
results of a discrimination telephone test, carried out across four
States, that measured the degree to which transgender homeless women
can access a shelter in accordance with their gender identity, as well
as the types of discrimination and mistreatment they face in the
process.\2\ The study consisted of 100 phone calls to homeless shelters
in four States, over 3 months, by testers who identified themselves as
transgender women seeking access to both women's shelters and general
shelters. The study found that only 30 percent of the shelters
contacted by the testers were willing to house the transgender women
with other women, 13 percent offered to house the transgender women in
isolation or with men, 21 percent refused service altogether, and
another 21 percent were unsure or unclear as to whether they could
house transgender women with other women. The survey results also found
that women's shelters were more likely to provide services consistent
with an individual's gender identity than were mixed gender shelters.
During interactions on the phone with shelter employees, testers
experienced the following: they were often referred to using the wrong
gender or shelter employees made other statements to discredit their
gender identity, shelter employees made references to the testers'
genitalia or to surgery as requirements for appropriate housing, and
shelter employees stated
[[Page 64766]]
that other residents would be made uncomfortable or unsafe by the
tester. Of the shelters called, 27 percent had received HUD funds at
some point.
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\2\ Caitlin Rooney, et al., Center for American Progress and the
Equal Rights Center Discrimination Against Transgender Women Seeking
Access to Homeless Shelters, January 7, 2016, available at: https://cdn.americanprogress.org/wp-content/uploads/2016/01/06113001/HomelessTransgender.pdf.
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In May 2016, DOJ and the Department of Education released guidance
summarizing the legal obligations of schools regarding transgender
students.\3\ The guidance specifically emphasizes that schools must
``treat a student's gender identity as the student's sex for purposes
of Title IX and its implementing regulations.'' In sex-segregated
activities and facilities, transgender students ``must be allowed to
participate in such activities and access such facilities consistent
with their gender identity.'' The guidance also requires schools to
provide a safe environment for all students, including transgender
students, and requires that schools treat students consistent with
their gender identity regardless of records or identification documents
indicating a different sex.
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\3\ Dear Colleague Letter on Transgender Students May 13, 2016,
https://www.justice.gov/opa/file/850986/download.
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Also in May 2016, the Department of Health and Human Services
issued final regulations entitled ``Nondiscrimination in Health
Programs and Activities,'' which implement section 1557 of the
Affordable Care Act.\4\ Section 1557 prohibits discrimination in health
programs and activities on the basis of sex, and the rule provides that
``a covered entity shall treat individuals consistent with their gender
identity, except that a covered entity may not deny or limit health
services that are ordinarily or exclusively available to individuals of
one sex, to a transgender individual based on the fact that the
individual's sex assigned at birth, gender identity, or gender
otherwise recorded is different from the one to which such health
services are ordinarily or exclusively available.''
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\4\ See 81 FR 31375, https://www.federalregister.gov/articles/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities.
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II. Changes Made at the Final Rule Stage
In response to public comment and upon further consideration by HUD
of the issues presented in this rulemaking, HUD makes the following
changes at this final rule stage:
In Sec. 5.100, the proposed definition of ``perceived gender
identity'' is modified so that the definition states that ``perceived
gender identity'' means the gender with which a person is perceived to
identify based on that person's appearance, behavior, expression, other
gender-related characteristics, sex assigned at birth, or
identification in documents. This change was made in response to public
comments stating that transgender persons often face difficulty in
being accommodated in accordance with their gender identity because it
is difficult to obtain identity documents that accurately list their
gender identity. The words ``identified in documents'' were added to
the definition to make clear that the identification of gender or sex
on an individual's identity document may be different than a person's
actual gender identity. The definition of ``gender identity'' in the
final rule, which is unchanged from the proposed rule, makes clear that
``gender identity'' means 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. Reading these definitions
together, ``gender identity'' is therefore determined regardless of the
gender identified on an individual's identity documents.
This rule also makes a technical amendment to the definition of
``sexual orientation.'' The 2012 Equal Access Rule defined ``sexual
orientation'' as ``homosexuality, heterosexuality, or bisexuality,''
following a definition that OPM used in the context of the Federal
workforce in its publication ``Addressing Sexual Orientation in Federal
Civilian Employment: A Guide to Employee Rights.'' OPM's publication
was revised in June 2015, and HUD is amending its definition to conform
to the new OPM definition, which is ``sexual orientation means one's
emotional or physical attraction to the same and/or opposite sex.''
(See https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/addressing-sexual-orientation-and-gender-identity-discrimination-in-federal-civilian-employment.pdf.) This change in
definition does not change the coverage provided by the prior
definition but is simply intended to use terminology that is up-to-
date.
In Sec. 5.105(a)(2), HUD adopts the proposal to eliminate the
inquiries provision in Sec. 5.105(a)(2)(ii). With the removal of Sec.
5.105(a)(2)(ii), Sec. 5.105(a)(2)(i) is redesignated as Sec.
5.105(a)(2).
In Sec. 5.106, HUD makes several changes. HUD has changed the
heading of this section from ``Providing access in accordance with the
individual's gender identity in community planning and development
programs'' to ``Equal access in accordance with the individual's gender
identity in community planning and development programs.'' Although
this is not a substantive change, the change appropriately emphasizes
that the purpose of the rule is equal access in accordance with an
individual's gender identity in CPD programs generally. Equal access
ensures that, when consideration of sex is prohibited or not relevant,
individuals will not be discriminated against based on actual or
perceived gender identity, and where legitimate consideration of sex or
gender is appropriate, such as in a facility providing temporary, short
term shelter that is not covered by the Fair Housing Act \5\ and which
is legally permitted to operate as a single-sex facility,\6\ the
individual's own self-identified gender identity will govern.
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\5\ The Fair Housing Act prohibits discrimination in the sale,
rental, making unavailable, or financing of dwellings and in other
housing-related activities on the basis of race, color, religion,
sex, disability, familial status, and national origin, and thus
prohibits making housing unavailable to a person because of that
person's sex. 42 U.S.C. 3601 et seq. The Fair Housing Act contains
no exemptions that permit covered housing to be sex-segregated. See
42 U.S.C. 3603(b) (limited exemptions from Fair Housing Act coverage
for sales of certain single family homes and for rooms or units in
certain owner-occupied dwellings), and Sec. 3607 (exemptions from
Fair Housing Act coverage for private clubs and religious
organizations).
\6\ Temporary, emergency shelters and other buildings and
facilities that are not covered by the Fair Housing Act because they
provide short-term, temporary accommodations may provide sex-
segregated accommodations, which they sometimes do to protect the
privacy and security of individuals when the buildings and
facilities have physical limitations or configurations that require
shared sleeping quarters or shared bathing facilities. For purposes
of this rule, shared sleeping quarters or shared bathing facilities
are those that are designed for simultaneous accommodation of
multiple individuals in the same space. For example, a single-user
bathing facility with a lock on the door is not designated for
simultaneous occupancy by multiple individuals, so it is not a
``shared bathing facility'' for purposes of the Equal Access Rule or
this rule.
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Section 5.106(a) is revised at the final rule stage to clarify that
Sec. 5.106 applies to recipients and subrecipients of assistance from
CPD, which include the specific programs identified at the proposed
rule stage (HOME, CDBG, HOPWA, ESG, and CoC), as well as to the Housing
Trust Fund program (with regulations at 24 CFR part 93) and the Rural
Housing Stability Assistance Program (with regulations to be codified
in 24 CFR part 579). As noted throughout the proposed rule, the rule
was always intended to apply to recipients and subrecipients of CPD
programs, as well as those who administer programs and services and
provide temporary, emergency shelter funded by CPD programs, and HUD
did not intend to exclude the new Housing Trust Fund and Rural Housing
Stability
[[Page 64767]]
Assistance programs from the list of CPD programs in this paragraph.
Section 5.106(b) addresses the admissions, occupancy, and operating
policies and procedures of recipients, subrecipients, owners,
operators, managers, and providers covered by this rule. Revised
paragraph (b) adds that policies and procedures to protect health and
safety, as well as privacy and security noted in the proposed rule,
must be established, maintained, or amended, as necessary, and provides
that all policies must be administered in a nondiscriminatory manner.
HUD recognizes that in the temporary, emergency shelters covered by
this rule, privacy, security, safety, and health concerns may arise as
a result of the varied populations that reside in such facilities at
any given time. The rule requires policies and procedures, if such
policies and procedures have not already been updated, to reflect the
obligation and to document the commitment of the provider to maintain a
healthy and safe environment for all occupants and respect individual
privacy without doing so in a way that is discriminatory or violates
applicable Federal laws and regulations.
HUD also revises paragraph (b) to add a provision that the policies
and procedures must ensure that individuals are not subjected to
intrusive questioning or asked to provide anatomical information or
documentary, physical, or medical evidence of the individual's gender
identity. This revision was made in response to public comment advising
that transgender persons and gender nonconforming persons are often
asked inappropriate, intrusive questions; asked to provide evidence
about their physical anatomy; or asked for medical records relating to
their gender identity or identification documents that record their
gender identity. There are multiple reasons why this documentation is
problematic and prohibited by this rule. Homeless persons encounter
difficulties in maintaining their identification documents, and
individuals whose gender identities differ from sex assigned at birth
experience varying levels of difficulty in updating gender markers on
identification documents. These barriers make it likely that an
individual seeking homeless services and whose gender identity differs
from their sex assigned at birth will possess identification documents
that do not reflect that individual's gender identity, if they have
identification documents at all. Further, gender identity is distinct
from sex assigned at birth, is not associated with physical anatomy,
and may not be indicated in medical records. For these reasons, HUD
agrees with public commenters that it is important that transgender or
gender nonconforming persons can self-identify their gender identity
orally and not be asked intrusive questions or asked to provide
documentary, physical, or medical evidence to prove their gender
identity.
Lastly, revised paragraph (b) also requires that such revisions
ensure that amendments to CPD programs policies and procedures continue
to include the existing requirement in Sec. 5.105(a)(2) that
individuals are provided equal access to housing in CPD programs
without regard to actual or perceived gender identity. While this
rule's focus is on programs, owners, operators, and managers of
shelters, buildings, and other facilities and providers of CPD-funded
services that were not covered under HUD's 2012 Equal Access Rule,
housing under CPD programs has already been required to ensure equal
access to individuals based on their gender identity. HUD adds this
provision to clarify that, when amending CPD program policies and
procedures, they should continue to reflect the existing 2012 Equal
Access Rule requirement that housing be made available without regard
to gender identity.
In Sec. 5.106(c), which addresses placement and 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, HUD
removes the proposed rule language that under narrow circumstances, a
written case-by-case determination could be made on whether an
alternative accommodation for a transgender individual would be
necessary to ensure health and safety. Public commenters expressed
concern that the exception could be inappropriately used to avoid
compliance with the equal access requirement, and that this
``exception'' also targeted transgender individuals as a cause of
concern with respect to health and safety. HUD was persuaded by the
public commenters that the ``exception'' provision had the opposite
effect than that intended by HUD. HUD's intention in the inclusion of
this language was to strive to ensure the health and safety of
transgender individuals in temporary, emergency shelters and other
buildings and facilities. It was not to indicate that the very presence
of transgender individuals was a cause for health and safety concerns
nor to indicate, by allowing alternative accommodation, that HUD's only
concern was the health and safety of transgender individuals and HUD
was not concerned about any other occupants. HUD's regulations for the
ESG program and the implementing guidance, make clear that 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 have had, and
continue to have, a responsibility to create a safe environment for all
occupants, particularly those of special populations (see 24 CFR
576.400(e)(3)(iii) for more information).
This final rule thus revises paragraph (c) of Sec. 5.106 to
provide that placement and accommodation of individuals shall be made
in accordance with an individual's gender identity, and it removes
language that permits an exception to this rule where a provider makes
a written case-by-case determination on whether an alternative
accommodation for a transgender individual would be necessary to ensure
health and safety. There are various measures that HUD's providers may
take to fulfill their duty to create a safe environment for all,
including transgender and gender nonconforming individuals, and to
ensure that HUD-funded projects are free from discrimination. As
preemptive steps, providers are strongly encouraged to post a notice of
rights under this rule and under HUD's 2012 Equal Access Rule on
bulletin boards and in other public spaces where information is made
available, to clearly establish expectations. In order to ensure that
individuals are aware of their rights to equal access, HUD proposes to
require owners and operators of CPD-funded shelters and facilities to
post on bulletin boards and in other public spaces where information is
typically made available a notice entitled ``Equal Access Regardless of
Sexual Orientation, Gender Identity, or Marital Status for HUD's
Community Planning and Development Programs,'' which HUD is publishing
in today's Federal Register for public comment, in accordance with the
Paperwork Reduction Act of 1995. In addition, HUD Technical Assistance
materials provide a sample antidiscrimination policy that providers may
consider adopting to further clarify expectations to persons as they
enter the project.\7\
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\7\ See Equal Access for Transgender People: Supporting
Inclusive Housing and Shelters https://www.hudexchange.info/resources/documents/Equal-Access-for-Transgender-People-Supporting-Inclusive-Housing-and-Shelters.pdf.
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[[Page 64768]]
Even with antidiscrimination policies clearly articulated,
occupants may express concerns or engage in other behavior toward
transgender or gender nonconforming persons. If some occupants
initially present concerns about transgender or gender nonconforming
occupants to project staff and managers, staff should treat those
concerns as opportunities to educate and refocus the occupants. HUD
recognizes that, even then, conflicts may persist and complaints may
escalate to verbal or physical harassment. In these situations,
providers should have policies and procedures in place to support
residents and staff in addressing and resolving conflicts that escalate
to harassment. These policies should include specific behaviors that
violate standards of respectful behavior, escalate corrective actions
if an individual repeats the same violation of standards after
educational opportunities are offered, and focus corrective actions on
aggressors who violate project rules, not on the person targeted by the
harassment. If an occupant continues to harass a transgender
individual, the provider should consider requiring that the harassing
occupant stay away from the transgender individual, making changes in
sleeping arrangements without limiting the freedom of the transgender
individual, or pursuing other interventions. When appropriate,
providers may consider expelling harassing residents, or any staff or
volunteer members who perpetuate discrimination. In no instance,
however, should any steps taken to address harassment or discrimination
involve expulsion of harassed occupants.
Revised paragraph (c) provides for post-admission accommodations,
where after an individual has been admitted to a temporary, emergency
shelter, or other building or facility with shared sleeping quarters or
shared bathing facilities, the provider must take non-discriminatory
steps that may be necessary and appropriate to address privacy concerns
raised by all residents or occupants, and, as needed, update its
admissions, occupancy, and operating policies and procedures. These
provisions apply to all individuals, regardless of gender identity. If
an individual requests certain accommodations because of privacy
concerns, staff may offer those accommodations to that individual but
may not require that the individual use the accommodations. For
example, if available, staff may offer that occupant a room, floor, or
bed that is close to staff workstations or access to rooms, floors, or
beds set aside for residents with increased vulnerability. At the
request of an individual, providers may also offer use of a single-
occupant bathroom or provide certain times during the day that a shared
bathroom can be scheduled by any client with a request to use a private
bathing facility. If feasible, providers can ensure that toilet and
shower stalls have locking doors or, at a minimum, curtains to allow
for modesty and privacy. For shower use, providers may consider
implementing a schedule for all clients if communal showers are the
only available type of shower. HUD stresses that all such
accommodations should be offered only to fulfill the request of
individuals seeking accommodations for themselves, should be available
to clients based on a variety of factors that can increase one's
vulnerability, and should not be restricted for use only by transgender
or gender nonconforming residents. In no case may a provider's policies
isolate or segregate transgender or gender nonconforming occupants.
This final rule removes from Sec. 5.105(d) in the proposed rule
the language relating to referrals, HUD has removed the provision from
the proposed rule that permitted housing providers to make a written
case-by-case determination that a transgender individual should receive
an alternative accommodation for health and safety reasons. This does
not preclude the possibility that any occupant may request a referral
to an alternate project for health and safety reasons, and in such
cases staff may provide a referral or offer clients a hotel or motel
voucher.\8\
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\8\ In the ESG program, a hotel or motel voucher may be offered
only if there are no other accessible or appropriate emergency
shelter beds available for that night.
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This final rule redesignates the recordkeeping requirements from
Sec. 5.106(e) to 5.106(d) and states that providers must document and
maintain, for a period of 5 years, records of compliance with the
requirements of this rule regarding establishing or amending policies
and procedures. This rule also removes the more specific requirements
related to case-by-case determinations and referrals.
To strengthen enforcement mechanisms for this rule, HUD is
publishing in today's Federal Register a notice for public comment, in
accordance with the Paperwork Reduction Act of 1995, entitled ``Equal
Access Regardless of Sexual Orientation, Gender Identity, or Marital
Status for HUD's Community Planning and Development Programs.'' HUD
proposes to require owners and operators of CPD-funded shelters and
facilities to post this notice on bulletin boards and in other public
spaces where information is typically made available.
III. Public Comments Submitted on Proposed Rule and HUD's Responses
A. Overview of Public Comments
The public comment period for the November 20, 2015, proposed rule
closed on January 19, 2016. As of the close of the comment period, HUD
received approximately 184 public comments, in addition to a number of
mass mailings, from a variety of commenters, including housing
authorities, direct legal services providers, community development
agencies, homeless shelters, healthcare providers, social workers,
clergy, counselors, nonprofit social service providers, and LGBT
advocacy organizations. The overwhelming majority of comments were
supportive of the rule. Some commenters, while supporting the rule,
suggested modifications, and a minority of the commenters opposed the
rule. Commenters opposing the rule stated that it failed to balance the
needs of all shelter occupants and lacks flexibility. All comments can
be viewed at http://www.regulations.gov.
1. Commenters Supporting the Rule
Many commenters supporting the rule suggested no changes and
offered a variety of reasons why they supported the rule and why HUD
should conclude the rulemaking as expeditiously as possible. Commenters
stated that transgender persons, like all persons, need access to safe
shelter and housing and that transgender persons are some of the most
vulnerable members of society. Commenters stated that transgender
individuals are disproportionately represented in the homeless
population because of the frequent discrimination they face at home, in
school, and on the job. Some cited a survey showing that one in five
transgender or gender nonconforming individuals experienced
homelessness at some point in their lives because of their transgender
status. Commenters stated that transgender individuals were at greater
overall risk of violence, murder, and homelessness-related death than
people who are not transgender and may also experience mental and
physical health problems because of the abuse they face.
Commenters stated that the rule would promote civil rights and
expanded housing opportunity by addressing the effects of stigma on
equal access to housing for transgender and
[[Page 64769]]
gender nonconforming persons. Commenters supporting the rule frequently
stated that the rule would eliminate major barriers to access to safe,
temporary, emergency shelter and other facilities and programs for
transgender and gender nonconforming persons, particularly vulnerable
subgroups within the population that need access to such
accommodations. Some commenters stated that the rule will yield other
positive societal outcomes. Many commenters provided extensive data to
support the rule, including a January 2016 study conducted by the
Center for American Progress that found, among other things, that only
30 percent of shelters studied were willing to accommodate transgender
women in accordance with their gender identity. The commenters stated
that LGBT providers were twice as likely to be willing to provide a
shelter-seeker with accommodations in accordance with the individual's
gender identity; that women's shelters were more likely than mixed-
gender shelters to provide a shelter-seeker with accommodations in
accordance with the individual's gender identity; and that many
shelters did not correctly classify shelter-seekers in accordance with
the individual's gender identity or stated that transgender or gender
nonconforming individuals would have to submit to invasive medical
examinations or inquiries, or demonstrate that they had undergone
surgery, as a prerequisite to obtaining shelter.\9\
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\9\ Center for American Progress, Discrimination Against
Transgender Women Seeking Access to Homeless Shelters (Jan. 7,
2016), available at https://cdn.americanprogress.org/wp-content/uploads/2016/01/06113001/HomelessTransgender.pdf.
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Other commenters supporting HUD's rule stated that the rule is
needed because the willingness to house transgender people in
accordance with their gender identity currently varies, depending on
State laws and shelter type, and HUD's rule would provide some
consistency. Commenters stated that because 32 States lack explicit
gender identity protections in housing, HUD's rule will help ensure
equal access to shelters nationwide for transgender and gender
nonconforming individuals. Commenters said that even in jurisdictions
with express protections for transgender individuals, discriminatory
practices still persist. Commenters stated that HUD's rule is in step
with recent Federal case law holding that discrimination on the basis
of sexual orientation and gender identity constitutes unlawful
discrimination on the ``basis of sex,'' in violation of Title VII of
the Civil Rights Act and Title IX of the Education Amendments of 1972.
2. Comments Opposing the Rule
Commenters opposing the rule provided many reasons for their
opposition but the primary reason concerned the safety of
nontransgender individuals in a shelter. Commenters stated that the
rule should not open female, single-sex spaces to individuals who were
born male, citing their fear that individuals could deliberately
misrepresent their gender identities and compromise the privacy or
safety of vulnerable women and children. Commenters stated that there
is a risk of causing female survivors of male-perpetrated domestic or
sexual violence, who are disproportionately represented in the homeless
population and shelters, to feel unsafe. Commenters said the rule does
not respect legitimate safety and privacy concerns of biological women,
and that the rule treats women's fear of being assaulted in a shelter
as unreasonable ``bigotry.'' Commenters stated that the rule should
require providers to create segregated facilities for transgender
individuals, rather than placing individuals into male or female
facilities that correspond to the individual's gender identity.
Commenters stated that transgender men are also vulnerable to assault
in shelters. Several commenters opposing the rule cited to articles
recounting the stories of individuals who had been raped in shelters. A
commenter stated that it is untrue that transgender women can be safe
only in a women's shelter. Commenters stated that the rule must balance
the various needs, perspectives, personal histories, and expectations
of privacy of both transgender individuals and other shelter seekers.
Commenters stated that the rule should provide equal consideration to
the health and safety concerns of transgender and nontransgender
individuals and guidelines on what constitutes threats to health and
safety for transgender and nontransgender individuals.
3. Responses to Comments in Support and Opposition
HUD appreciates all of the comments offered in response to HUD's
proposed rule. Comments supporting the rule as well as comments
opposing the rule gave HUD much to consider in the development of this
final rule. While HUD is proceeding with this rulemaking, HUD is making
the changes highlighted in Section II of this preamble.
B. Significant Public Comments and HUD's Responses
This section presents significant issues raised by commenters and
HUD's responses to these comments. The issues presented in this section
highlight changes requested by commenters, and questions about or
requests for clarifications about certain provisions of the rule.
Comment: Commenters stated that the rule exceeds HUD's current
statutory mandate because Congress has not given HUD the authority to
prohibit discrimination based on gender identity. Commenters stated
that the rule's definitions of ``gender identity'' and ``perceived
gender identity'' are overbroad and exceed HUD's authority by creating
a new protected class and that HUD failed to specify the basis for this
prohibition of discrimination.
HUD Response: The rule creates additional program requirements to
ensure equal access for transgender and gender nonconforming persons,
in accordance with their gender identity, in shelters, buildings,
facilities, and programs funded in whole or in part by CPD. The
creation of such program requirements is well within the scope of HUD's
authority. HUD's mission is to create strong, sustainable, inclusive
communities and quality affordable homes for all. This mission
encompasses providing shelter for transgender and gender nonconforming
persons, who have faced significant difficulty in obtaining access to
shelters, and buildings and facilities that provide shelter. Excluding
any eligible person from HUD-funded temporary, emergency shelters,
buildings, facilities, housing, or programs because of that person's
gender identity or nonconformance with gender stereotypes would
contravene HUD's responsibility under the Department of Housing and
Urban Development Act to work to address ``the needs and interests of
the Nation's communities and of the people who live and work in them.''
(See 42 U.S.C. 3531.) Congress has repeatedly charged HUD with serving
the existing housing needs of all Americans.\10\
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\10\ See section 2 of the Housing Act of 1949 (42 U.S.C. 1441);
section 2 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701t), sections 101 and 102 of the Cranston-Gonzalez
National Affordable Housing Act (42 U.S.C. 12701-702), and section
2(b) of the Housing and Community Development Act of 1974 (42 U.S.C.
5301 note).
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Congress has not only given HUD this broad mission but also given
HUD broad authority to fulfill this mission and implement its
responsibilities through rulemaking. Section 7(d) of the Department of
Housing and Urban
[[Page 64770]]
Development Act specifically states that the Secretary ``may make such
rules and regulations as may be necessary to carry out his functions,
powers, and duties.'' Moreover, as discussed in the preamble to HUD's
2012 Equal Access Rule and as discussed in greater detail in response
to the following comment, HUD is charged with administering and
enforcing the Fair Housing Act, which prohibits discrimination on the
basis of protected characteristics, including sex. Discrimination
because of gender identity is covered within the Fair Housing Act's
prohibition of sex discrimination. In 2010, HUD issued a memorandum
recognizing that sex discrimination includes discrimination because of
gender identity. In 2012, the Equal Employment Opportunity Commission
(EEOC) reached the same conclusion with regard to gender identity
claims, ``clarifying that claims of discrimination based on transgender
status, also referred to as claims of discrimination based on gender
identity, are cognizable under Title VII's sex discrimination
prohibition.'' \11\ Following the EEOC's decision, the U.S. Attorney
General also concluded that:
---------------------------------------------------------------------------
\11\ Macy v. Dept. of Justice, No. 0120120821, 2012 EEOPUB LEXIS
1181, *13 (EEOC Apr. 20, 2012); see also Lusardi v. Dept. of the
Army, No. 0120133395, 2015 EEOPUB LEXIS 896, *17 (EEOC Apr. 1,
2015).
the best reading of Title VII's prohibition of sex discrimination is
that it encompasses discrimination based on gender identity,
including transgender status. The most straightforward reading of
Title VII is that discrimination ``because of . . . sex'' includes
discrimination because an employee's gender identification is as a
member of a particular sex, or because the employee is
transitioning, or has transitioned, to another sex.\12\
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\12\ Attorney General Memorandum, Treatment of Transgender
Employment Discrimination Claims Under Title VII of the Civil Rights
Act of 1964 (Dec. 15, 2014), posted at http://www.justice.gov/file/188671/download. Similarly, the Office of Personnel Management
revised its nondiscrimination regulations to make clear that sex
discrimination under Title VII includes discrimination based on
gender identity. See, e.g., 5 CFR 300.102-300.103; see also OFCCP
Directive 2014-02, Gender Identity and Sex Discrimination (Aug. 19,
2014) (stating that discrimination based on gender identity or
transgender status is discrimination based on sex), posted at http://www.dol.gov/ofccp/regs/compliance/directives/Directive_2014-02_508c.pdf.
HUD reaffirms its view that discrimination based on gender identity
is sex discrimination.
Comment: HUD received comments on sex discrimination under the Fair
Housing Act and the proposed requirement that individuals be provided
accommodations in accordance with their gender identity. A commenter
stated that, while it is helpful that HUD already considers the Fair
Housing Act's provision against discrimination on the basis of sex to
cover nonconforming gender expression, it would be helpful to make that
protection explicit in the new rule.
HUD Response: HUD does not believe it is necessary to modify the
proposed regulatory text as the commenter recommends. In Sec. 5.100 of
the proposed rule, HUD included a definition of ``perceived gender
identity'' in order to differentiate between actual gender identity and
perceived gender identity for purposes of this rule and the 2012 Equal
Access Rule. Under that definition, perceived gender identity means the
gender with which a person is perceived to identify based on that
person's appearance, behavior, expression, other gender-related
characteristics, or sex assigned to the individual at birth. In the
final rule, the definition is amended to read as follows: Perceived
gender identity means the gender with which a person is perceived to
identify based on that person's appearance, behavior, expression, other
gender-related characteristics, or sex assigned to the individual at
birth or identified in documents. Because the definition of perceived
gender identity included in the proposed rule and adopted by this rule
includes gender expression, Sec. 5.105(a)(2) of the rule addresses the
commenter's concern that HUD-assisted or -insured housing shall be made
available without regard to an individual's gender expression. HUD does
not believe any revision to the text of Sec. 5.105(a)(2) is necessary
to address this concern. Any suggested amendment to Fair Housing Act
regulations is outside the scope of this rulemaking.
Comment: Some commenters stated that the rule should create similar
equal access to housing policies for transgender or gender
nonconforming persons in all emergency shelters and facilities. Another
commenter stated that the Fair Housing Act does not prohibit
discrimination based on gender identity in shelters. A commenter stated
that the lack of a law prohibiting discrimination against transgender
persons in shelters has not stopped rescue missions and other shelter
providers from meeting the diverse needs of transgender persons in
crisis.
HUD Response: While HUD appreciates that commenters want to have
this rule apply to all emergency shelters, the scope of this rulemaking
is limited to shelters, other buildings and facilities, and programs
funded in whole or in part by CPD. CPD is the HUD office that funds
various types of shelters. While HUD believes that all emergency
shelters, including those temporary, emergency shelters that are not
subject to the requirements of the Fair Housing Act and that HUD does
not fund, should provide equal access in accordance with an
individual's gender identity, imposing those requirements on all
emergency shelters is outside the scope of this rulemaking.
With respect to the commenter's statement about the Fair Housing
Act, HUD seeks to clarify that, contrary to the commenter's stated
view, the Fair Housing Act's prohibition of discrimination because of
sex does include the prohibition of discrimination based on gender
identity or nonconformance with gender stereotypes, which includes
discrimination against an individual having a gender identity that does
not conform to an individual's sex assigned at birth. While HUD
disagrees with the commenter's broad statement that there is no law
prohibiting discrimination based on gender identity in shelters, HUD
agrees that it is beneficial for all shelters, including rescue
missions, to continue to provide accommodation and services to
transgender persons.
Comment: A commenter sought clarity regarding the application of
the Fair Housing Act to shelters. The commenter asserted that the Fair
Housing Act does not apply to homeless shelters because, in the
commenter's view, they are not ``dwellings'' covered under the Fair
Housing Act. The commenter stated that the term ``dwelling'' is not
well-defined in case law, that emergency shelters are not dwellings
under the Act; and that the prohibitions of section 3604 of the Fair
Housing Act do not apply to ``free'' shelters and similar facilities
because, in the commenter's view, such prohibitions only apply to
housing that is for sale or rental. The commenter stated that, if HUD
adopted a statement that the Fair Housing Act does not apply to
homeless shelters, such adoption would ``strengthen fair housing and
mitigate confusion and misinterpretation among providers, fair-housing
agencies, and shelter guests.''
HUD Response: The commenter misunderstands HUD's statement about
emergency shelters and the coverage of the Fair Housing Act. Contrary
to the commenter's assertion, HUD does not categorically exclude
temporary, emergency shelters providing short-term housing
accommodations from coverage under the Fair Housing Act. In fact, HUD's
established policy and regulations explicitly identify homeless
shelters and other short-term or transient housing as ``dwellings''
subject
[[Page 64771]]
to the Act.\13\ The Act defines ``dwelling'' as ``any building,
structure, or portion thereof which is occupied as, or designed or
intended for occupancy as, a residence by one or more families'' and
includes vacant land.\14\ Thus, shelters generally are covered within
the definition of dwelling, and many courts have held shelters and
other short-term accommodations to be dwellings covered by the Fair
Housing Act.\15\ However, some shelters may not qualify as a
``dwelling'' under the Fair Housing Act, and, therefore, HUD has
endorsed the following multiple factor analysis for determining whether
a shelter is a covered dwelling for purposes of the Fair Housing Act:
(1) Length of stay; (2) whether the rental rate for the unit will be
calculated based on a daily, weekly, monthly, or yearly basis; (3)
whether the terms and length of occupancy will be established through a
lease or other written agreement; (4) what amenities will be included
inside the unit, including kitchen facilities; (5) how the purpose of
the property will be marketed to the public; (6) whether the resident
possesses the right to return to the property; and (7) whether the
resident has anywhere else to which to return.\16\
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\13\ See, e.g., Final Report of HUD Review of Model Building
Codes, 65 FR 15740, 15746, 15747 (March 23, 2000) (``HUD specified
as dwellings covered by the Act . . . such short-term housing as . .
. homeless shelters.''). See also, e.g., 24 CFR 100.201 (the
definition of ``dwelling units'' includes, e.g., sleeping
accommodations in shelters intended for occupancy as a residence for
homeless persons); Supplement to Notice of Fair Housing
Accessibility Guidelines: Questions and Answers about the
Guidelines, 56 FR 9472, 9500 (March 6, 1991) (same); Implementation
of the Fair Housing Amendments Act, 54 FR 3232, 3245 (January 23,
1989) (same).
\14\ 42 U.S.C. 3602(b).
\15\ See, e.g., Schwartz v. City of Treasure Island, 544 F.3d
1201, 1215 (11th Cir. 2008) (halfway houses for recovering addicts);
Lakeside Resort Enter. v. Bd. of Supervisors of Palmyra Twp., 455
F.3d 154, 158-60 (3rd Cir. 2006) (treatment facility); Turning
Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir. 1996)
(homeless shelter); Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096,
1103 (3rd Cir. 1996) (nursing home); U.S. v. Columbus Country Club,
915 F.2d 877, 881 (3rd Cir. 1990) (summer bungalows); Connecticut
Hosp. v. City of New London, 129 F. Supp. 2d 123, 135 (D. Conn.
2001) (halfway houses for substance abuse treatment); Lauer Farms,
Inc. v. Waushara County Board of Adjustment, 986 F. Supp. 544, 557,
559 (E.D. Wis. 1997) (migrant farmworker housing); Louisiana Acorn
Fair Hous. v. Quarter House, 952 F.Supp. 352, 359-60 (E.D. La. 1997)
(time-share unit); Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D.
Ill. 1995) (homeless shelter); Baxter v. City of Belleville, 720 F.
Supp. 720, 731 (S.D. Ill. 1989) (residence for terminally ill); U.S.
v. Hughes Mem'l Home, 396 F. Supp. 544, 549 (W.D. Va. 1975) (home
for needy children).
\16\ See 65 FR at 15746.
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Determining whether a particular emergency shelter is a covered
dwelling for purposes of the Fair Housing Act requires application of
the multiple factors to its operation. No single factor is
determinative. For instance, the absence of a rental fee or lease does
not disqualify an accommodation from coverage under the Fair Housing
Act.\17\ Further, contrary to the commenter's view, section 3604 of the
Fair Housing Act does not only apply to discriminatory conduct that
involves a sale or rental. The Fair Housing Act has no such limitation.
In addition to prohibitions against refusals ``to sell or rent after
making of a bona fide offer'' and ``to refuse to negotiate for the sale
or rental,'' section 3604(a) also prohibits ``otherwise mak[ing]
unavailable or deny[ing]'' a dwelling to any person protected under the
Fair Housing Act.\18\ HUD and courts have long made clear that a
variety of conduct that does not involve sale or rental can make
housing otherwise unavailable.\19\ Similarly, section 3604(b) is not
limited to conduct involving a sale or rental, as it also prohibits
discrimination in the ``provision of services or facilities in
connection'' with a dwelling.\20\ HUD strongly disagrees that adopting
a broad statement that the Fair Housing Act does not apply to homeless
shelters would strengthen fair housing. HUD also emphasizes that this
rule covers CPD-funded shelters and other buildings and facilities
regardless of whether the facility qualifies as a dwelling under the
Fair Housing Act.
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\17\ See, e.g., Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D.
Ill. 1995) (homeless shelter did not charge rent).
\18\ 42 U.S.C. 3604(a).
\19\ See, e.g., Ojo v. Farmers Grp., Inc., 600 F.3d 1205, 1208
(9th Cir. 2010) (discriminatory pricing and denial of homeowners
insurance violates 804(a) and (b)); Nationwide Mut. Ins. Co. v.
Cisneros, 52 F.3d 1351, 1357-58 (6th Cir. 1995) (same); Keith v.
Volpe, 858 F.2d 467, 482-484 (9th Cir. 1988) (municipal's refusal to
permit low-income housing violates 804(a)). See also, e.g., 24 CFR
100.70(d)(4) (refusing to provide municipal services or property or
hazard insurance because of protected class).
\20\ 42 U.S.C. 3604(b); see, e.g., 24 CFR 100.65(b)(2) (failing
or delaying maintenance because of protected class).
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Comment: Some commenters stated that the proposed rule is
inconsistent with the Fair Housing Act, which forbids sex
discrimination as to covered dwellings but not as to free, temporary,
emergency shelters or other buildings or facilities, and which,
therefore, evinces the intent of Congress to permit single-sex housing
in the latter case. Commenters expressed concern that the decision by
Congress to allow single-sex facilities that do not qualify as
dwellings would be unenforceable if this rule is implemented as
proposed; for example, if a women's shelter were required to admit a
biological man based merely upon his assertion that he ``identifies
as'' a woman, or if a men's shelter were required to admit a biological
woman based merely upon her assertion that she ``identifies as'' a man.
HUD Response: As previously stated, the rule is not inconsistent
with the Fair Housing Act. While the Fair Housing Act includes
nondiscrimination requirements applicable to dwellings covered by the
Act, it does not prohibit HUD from establishing additional program
requirements through rulemaking. Temporary, emergency shelters and
other buildings and facilities with physical limitations or
configurations that require shared sleeping quarters or bathing
facilities and that do not qualify as dwellings under the Fair Housing
Act may operate single-sex shelters unless doing so would violate some
other Federal, State, or local law. Under this rule, such shelters or
other buildings and facilities funded by programs administered by CPD
\21\ must determine placement in such single-sex facilities in
accordance with each applicant's or occupant's gender identity,
regardless of sex assigned at birth or other factors. As noted in
response to a prior comment, 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. Contrary to the public comment that suggests
what Congress's intent was in creating single-sex facilities, HUD does
not opine on Congress's intent behind permitting single-sex facilities,
but does make clear in this rule that, for purposes of determining
placement in a single-sex facility, placement should be made consistent
with an individual's gender identity. This rule does not attempt to
interpret or define sex.
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\21\ HUD provided similar guidance to recipients and
subrecipients that place eligible persons in single-sex temporary,
emergency shelters or other facilities receiving ESG, CoC, or HOPWA
funds. See Appropriate Placement for Transgender Persons in Single-
Sex Emergency Shelters and Other Facilities, (Notice: CPD-15-02
(February 20, 2015)).
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Comment: One commenter expressed concern that Congress would see no
need to enact the Equality Act, a bill that would expressly forbid
discrimination in housing on the basis of sexual orientation and gender
identity, once HUD issued a rule prohibiting such discrimination.
HUD Response: While HUD appreciates the commenter's desire to see
Congress enact new legislation expanding antidiscrimination
[[Page 64772]]
protections in housing, HUD does not believe the introduction of such
legislation warrants delaying issuance of this important rule. Because
many transgender persons are being denied access to temporary,
emergency shelters and other building and facilities or are being
placed and served in such shelters in accordance with their sex
assigned at birth instead of in accordance with their gender identity,
HUD believes it is necessary to issue this rule at this time to ensure
that transgender and gender nonconforming persons are accorded equal
access and are accommodated in accordance with their gender identity in
programs, shelters, buildings, and facilities assisted by CPD. Given
that this rulemaking applies only to providers that receive HUD funds
and not more broadly, HUD does not believe that its rulemaking in this
important area will impact any broader legislative action that Congress
may choose to take.
Comment: Commenters stated that the rule is not based on
sufficiently exhaustive research and data, such as interviews with
people not in the LGBT community, and only presents one-sided research
on the issue of gender identity. A commenter said that while the rule
notes that many transgender shelter-seekers would choose sleeping on
the street rather than a shelter for their sex assigned at birth, HUD's
rule does not address whether biological women would choose to sleep on
the streets if their only other option were to share sleeping and
bathing spaces with anatomically biological males who self-identify as
women. Commenters stated that, before HUD institutes this rule, HUD
needs more research on what risks placing males in female-only
facilities will pose to women, and HUD should continue to search for
solutions for providing safe services for particularly vulnerable males
and, if vulnerable males must be placed at a women's shelter, female
clients should be able to sleep, bathe, and use the toilet away from
biological males.
HUD Response: As HUD program participants and the public are aware,
HUD spent considerable time studying this issue. During the development
of HUD's 2012 Equal Access Rule, commenters requested HUD to address
the issue of temporary, emergency shelters that contain shared sleeping
quarters and shared bathing facilities. HUD, however, declined to
address that issue in the 2012 Equal Access Rule because of the need to
conduct further research and examination of the issue. During the time
since the 2012 Equal Access Rule was issued, HUD monitored and reviewed
its own programs, national research, and other Federal agency policy to
determine if transgender individuals had sufficient access to
temporary, emergency shelters or if additional guidance or a national
policy was warranted. HUD considered the issue not only from the
perspective of transgender persons and other gender nonconforming
persons, but also from the perspective of individuals whose sex
assigned at birth and whose gender identity are the same. HUD has
learned through its review that all individuals, including transgender
persons and other gender nonconforming persons, can be safely
accommodated in shelters and other buildings and facilities in
accordance with their gender identity. Privacy concerns can be
addressed through policy adjustments, such as the use of 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.
Further, the 2016 Center for American Progress study cited in the
Background section of this preamble revealed that shelters were willing
to provide transgender women with appropriate shelter only 30 percent
of the time. Given the 4-year examination of this issue prior to this
rule and the recent evidence of continued and widespread practices that
deny access or subject transgender individuals to unequal treatment,
HUD is ready to address this matter in regulation and believes that
this final rule sets the right approach.
Comment: Commenters stated that because the rule requires shelters
and other programs and services to change their policies and
procedures, oversight and accountability should be created or
strengthened. Commenters stated that current lack of oversight within
the shelter and emergency housing system threatens the lives of
transgender, gender nonconforming, and intersex people; subjects them
to violence and degradation without any accountability or protection;
and violates their basic human rights and the equal protections that
should be accorded them. Commenters stated that HUD should clarify, in
the final rule or in another form, how HUD will monitor and enforce the
CPD Equal Access Rule, including an amendment stating that without
meaningful monitoring and enforcement as is done for protected groups
under the Fair Housing Act, the promise of the rule may go unfulfilled.
Other commenters stated that the system for filing complaints needs to
be improved, and a complaint filing system needs to be incorporated at
the local level, where marginalized transgender and gender
nonconforming individuals seeking shelter have ready access to
advocates who can assist them. A commenter stated that no organization
should receive Federal funds without standing proof of compliance.
HUD Response: HUD agrees that safety, respectful treatment, and
equal access are critical issues for transgender and gender
nonconforming individuals, as they are for everyone, and HUD's
regulations for the ESG program make it clear that all ESG-funded
emergency shelters, including those with configurations that require
shared sleeping quarters or shared bathing facilities, have had, and
continue to have, a responsibility to create a safe environment for all
occupants, particularly those of special populations (see 24 CFR
576.400(e)(3)(iii) for more information). Recipients, subrecipients,
owners, operators, and managers of temporary, emergency shelters and
other buildings and facilities and providers of services are expected
to take the steps necessary to comply with this rule and maintain safe
conditions for all shelter and facility residents and employees. When
there is a threat to the safety of any resident, HUD expects
recipients, subrecipients, and shelter or facility owners, operators,
managers, and providers to take appropriate steps to address such
threats. Such mitigating steps may include proactive measures to reduce
risks such as increasing the shelter's security personnel, making
adjustments to a facility's operating policies and schedules, and
modifying shelter facilities to provide a single occupant bathing
facility. HUD has heard from providers that adjusting a facility's
operating policies and schedules is usually sufficient and does not
cost additional funds, and thus HUD encourages agencies to start with
this modification. HUD also notes that, for additional modifications
that are necessary, some funded facilities, such as those under the ESG
program, can use ESG funds to modify the shelter facility or provide
additional security.
HUD believes that by requiring equal access for transgender
individuals and other gender nonconforming persons in this regulation,
HUD will be better able to monitor and enforce actions required to
ensure equal access in temporary, emergency and other CPD-assisted
buildings, facilities, and programs. Section 5.106(b) requires that
recipients, subrecipients, operators, managers, and providers of
temporary, emergency shelters, other buildings and facilities,
programs, and services update their policies, if not already updated,
to comply with providing equal access,
[[Page 64773]]
which HUD can review when monitoring its recipients', subrecipients',
and providers' compliance with the new requirements established by this
final rule. In addition, Sec. 5.106(d) requires that providers must
document and maintain records of compliance with the requirements in
Sec. 5.106(b) of this rule for a period of 5 years.
Transgender and other gender nonconforming persons are encouraged
to file complaints if they have been denied equal access to temporary,
emergency shelters, other buildings and facilities, programs, or
services in accordance with their gender identity. Individuals may file
complaints of discrimination based on gender identity by calling 1-800-
669-9777 (toll-free) or online at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint.
Persons who are deaf or hard of hearing or who have speech impairments
may file a complaint via TTY by calling the Federal Relay Service at 1-
800-877-8339 (toll-free).
Transgender and other gender nonconforming persons are encouraged
to file complaints with HUD's CPD program office if they have been
denied equal access to any services, accommodations, or benefits under
CPD programs. Whenever a recipient (including subrecipients) of HUD
funds fails or refuses to comply with program requirements, whether in
statute or regulation, such failure or refusal shall constitute a
violation of the requirements under the program in which the recipient
is operating, and the recipient is subject to all sanctions and
penalties for violation of program requirements, as provided for under
the applicable program. Sanctions may include the withholding of HUD
assistance. In addition, HUD may pursue an enforcement action when the
Fair Housing Act is implicated. A housing provider who is found to have
violated the Fair Housing Act may be liable for actual damages,
injunctive and other equitable relief, civil penalties, and attorney's
fees. As previously discussed, along with this rule, HUD is publishing
in today's Federal Register for public comment a notice entitled
``Equal Access Regardless of Sexual Orientation, Gender Identity, or
Marital Status for HUD's Community Planning and Development Programs''
that HUD proposes to require owners or operators of CPD-funded programs
and facilities to post on bulletin boards and in other public spaces.
Comment: A commenter stated that the rule may place a significant
burden upon the associational and religious liberty of beneficiaries
and other stakeholders; for example, by requiring residents to share
facilities with opposite-sex adults where their religions prohibit
that.
HUD Response: 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
equally inappropriate to isolate or ostracize individuals because their
gender identity is not the same as their sex assigned at birth. 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.
Moreover, as noted in response to prior comments, in dwellings covered
by the Fair Housing Act, exclusion or unequal treatment based on an
individual's gender identity or nonconformance with gender stereotypes
is discrimination because of sex and violates the Act. 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.
Faith-based organizations have long been involved in HUD's programs
and provide many valuable services to low-income populations served by
HUD. It is HUD's hope that faith-based organizations will continue to
actively participate in HUD's CPD programs and provide services to
transgender persons in accordance with the requirements set in this
rule.
Comment: A commenter stated that the rule does not reflect the
reality of providing shelter to people in challenging environments and
with limited resources. Commenters stated that HUD should consider the
following: (1) Providing additional resources to shelters to help them
meet the privacy, health, and safety needs of clients; (2) examining
what scope of client interview is permissible to enable staff to
identify an attempted misuse of the proposed mandate without fear of
legal challenge; (3) determining whether staff would be placed in an
untenable position of pressure to accede to a request or demand
contrary to their situational awareness and the reasonable concerns of
other (often traumatized) shelter clients; (4) examining how a provider
would gather timely and appropriate information that it believes is
relevant to the actual situation but not necessarily a matter of health
or safety; (5) determining whether the privacy concerns of other
clients are legitimate criteria for placement; (6) examining how
single-sex women shelter providers will reconcile differences between
the Violence Against Women Act's (VAWA) ``due consideration'' approach
for single-sex housing and the mandate in this rule, and how shelter
providers will be expected to reconcile differences between the mandate
of this regulation and the often conflicting regulations and guidance
provided by other Federal, State and local housing agencies. A
commenter said that the proposed rule will increase guesswork and the
paperwork burden surrounding client placement and expressed concern
about the legal repercussions to a provider for denying placement where
there is a question as to ``valid'' gender identity.
HUD Response: HUD appreciates the items for consideration raised by
the commenters and these were the very issues that HUD did, in fact,
take into consideration before issuing this CPD Equal Access Rule, more
than 4 years after the 2012 Equal Access Rule. In addition, before
commencing this rulemaking, on February 20, 2015, CPD released Notice
CPD-015-02, ``Appropriate Placement for Transgender Persons in Single-
Sex Emergency Shelters and Other Facilities,'' applicable to CPD's
HOPWA, ESG, and CoC programs. This notice provides that HUD expects
recipients, subrecipients, and providers to accommodate individuals in
accordance with the individual's gender identity.\22\ HUD has had over
1 year of experience with this guidance in place and such experience
further informed HUD in development of the final rule. There is no
reason to assume that transgender persons pose risks to health or
safety. Indeed, experience under this guidance has shown that
transgender and other gender nonconforming persons can be and have been
safely accommodated in accordance with their gender identity in single-
sex facilities without the types of disruptions feared by the
commenter.
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\22\ See notice at https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.
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In response to the commenter's concern about the extent of
questioning and investigation that shelter staff may perform prior to
determining appropriate accommodations for
[[Page 64774]]
transgender and other gender nonconforming persons, HUD has made
modifications to the proposed rule at this final rule stage.
Specifically, in Sec. 5.106(b) of this final rule, HUD makes clear
that it is inappropriate to subject individuals seeking accommodations
to unnecessary, intrusive questioning about their gender identity or to
ask them to provide anatomical information or documentary, physical, or
medical evidence of their gender identity. Examples of unnecessary,
intrusive questioning would be asking about surgeries, anatomy, and any
other topics that are not necessary for placing and serving a client in
the facility. Consistent with the approach taken by other Federal
agencies, HUD has determined that the most appropriate way for shelter
staff to determine an individual's gender identity for purposes of a
placement decision is to rely on the individual's self-identification
of gender identity. As for the comment about how to ``reconcile
differences between the VAWA's `due consideration' approach to single-
sex housing,'' HUD reviewed DOJ's guidance regarding the VAWA's
nondiscrimination provision and does not see a conflict that needs to
be reconciled.
HUD recognizes that emergency shelters are not the ideal placement
for anyone, and that is why HUD is encouraging communities to move
individuals and families into permanent housing as quickly as possible.
In the meantime, HUD recognizes that there are security risks in
operating shelters, but the obligation to provide for safety and
security is not new, and the denial of equal access cannot be justified
based on unfounded concerns about safety or security. Under this final
rule, policies and procedures for CPD programs covered by this rule
will have to include, if appropriate, provisions on nondiscriminatory
measures to ensure the health, safety, security, and privacy of all
occupants and staff in accordance with applicable Federal laws and
regulations. Further, under this rule, recipients, subrecipients,
owners, operators, managers, and providers of 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 must take nondiscriminatory steps that may be
necessary and appropriate to address privacy concerns raised by
residents or occupants, and, as needed, update their admissions,
occupancy, and operating policies and procedures. It would be
appropriate for a recipient, subrecipient, owner, operator, manager, or
provider to update its operating policies and procedures to reflect
nondiscriminatory steps to address privacy concerns if providers
repeatedly receive the same request from occupants that can be
accommodated in the same manner. However, an update to their policies
and procedures in order to address rare case-specific situations may
not be necessary, although an exception to policies and procedures may
be appropriate in such circumstances to avoid infringement on an
individual's privacy concern. HUD believes that this final rule
clarifies compliance and greatly reduces responsibility of the staff to
determine gender identity for the purposes of placement.
Comment: A commenter stated that the proposed paperwork and record
retention requirements of the proposed rule distract from the prime
objective of shelters, disincentivizes participation in HUD programs,
and make meeting the overarching objective of ensuring access to
shelter for all more costly and burdensome.
HUD Response: This final rule eliminates most of the provisions of
the proposed rule that required recordkeeping requirements, and as a
result HUD has removed most of the recordkeeping requirements in this
final rule. The only recordkeeping requirement that remains is the
requirement to maintain records of policies and procedures to ensure
that equal access is provided, and individuals are accommodated, in
accordance with their gender identity. This requirement will aid HUD in
monitoring compliance with this rule and taking enforcement action
where needed.
Comment: Commenters expressed support for the rule's definitions of
gender identity and perceived gender identity. A commenter said the
original definition of gender identity encouraged discrimination by
implying or directly giving providers the ability to determine gender
through discriminatory perceptions based on gender stereotypes. A
commenter stated that ``transgender women are women and transgender men
are men.'' Commenters stated that the rule's separation of definitions
of actual and perceived gender identity will help to ensure that LGBT
individuals receive equal access to shelter, for example, by clarifying
concepts that may be unfamiliar to grant recipients.
HUD Response: HUD appreciates the commenter's support for the
revised definition and agrees that it is important to differentiate
between actual gender identity and perceived gender identity. As
discussed earlier, the definition of ``perceived gender identity'' in
this final rule includes a perception based on documents, to make clear
that the identification of gender or sex on an individual's identity
document may be different than a person's actual gender identity, and
that the perceived gender identity of an individual based on
information on the documents may not be the basis of discrimination
against that individual.
Comment: Commenters stated that HUD's rule should allow persons to
determine gender identity and expression free from harassment and
violence, whether actual or perceived gender. Commenters stated that
they appreciated that the definition of ``perceived gender identity''
covers discrimination based on gender expression, and they urged HUD to
include consistent clarifying language to this effect in both the
preamble to the final rule and in training and technical assistance for
grantees.
HUD Response: As HUD noted in a prior response, by incorporating
gender expression into the definition of perceived gender identity, the
final rule requires recipients, subrecipients, and providers to make
shelter available without regard to gender expression. HUD will take
the commenter's recommendations into account when developing training
and technical assistance materials.
Comment: Commenters stated their belief that self-reported gender
identity should be afforded a lesser status than binary biological sex,
because gender is subjective, mutable, and theoretical, whereas
biological sex is objective, immutable, and demonstrable. Commenters
stated that research demonstrates a lack of scientific consensus as to
transgender status or that gender fluidity is a mental illness.
Commenters stated that the rule contravenes the Constitution's
recognition of a ``fundamental, irreducible reproductive asymmetry''
between women and men. Commenters stated that the rule should require
the use of verifiable criteria, e.g., medical history, to establish the
authenticity of a self-identified transgender individual. A commenter
stated that the rule puts ``staff in the position of adjudicating who
is a (transgender) woman and who is not,'' and that this is unfair to
such staff and the populations they serve. A commenter stated that
biological sex is relevant to decisions about single-sex housing and
shared sleeping and bathing areas. Another commenter said HUD conflates
the definitions of ``sex,'' and ``gender,'' and suggested that HUD
define ``sex'' as the actual biological
[[Page 64775]]
maleness or femaleness of a person and ``gender'' as the cultural sex-
role, although the commenter stated that even this revision is still
problematic because there are no universally agreed upon attributes for
what constitutes particular roles.
Other commenters stated that sex is not ``assigned'' at birth, but
is presented, observed, and recorded, and commenters recommended that
the rule refer to the sex ``presented'' at birth rather than the sex
``assigned'' at birth. This commenter also supported the view that
``perceived'' gender identity is problematic, as perception varies from
individual to individual, and asked how a provider is expected to
perceive somebody else's identity. The commenter suggested that the
rule state that perceived gender identity means the social sex-role the
person is assumed to have an affinity for based on exhibited
stereotyped behaviors commonly acknowledged to be associated with being
either male or female and/or the actual biological sex of the person,
but stated that there still needs to be some objective criteria for the
definition to be of any real use, but using stereotyped behaviors in
place of biological sex is problematic. A commenter said that the rule
also does not define ``transgender'' or explain how a provider could
distinguish between those who are sincere in their sex-role identity
and those who are not. Further, the commenter said that because this
rule enshrines expressions and characteristics as a legal sex category,
it will negatively affect other laws concerning women's rights, and the
definition of ``woman'' should be based on biological sex.
HUD Response: HUD appreciates and has considered the suggested
revisions to the definition of ``gender identity'' offered by
commenters. However, HUD declines to make the suggested changes at this
final rule stage. As HUD observed in the 2012 Equal Access Rule, the
number of suggested revisions to the definition of ``gender identity''
highlights a range of differing views among commenters regarding the
meaning of this term. Consequently, HUD was required to determine which
definition makes the most sense in this context. As noted earlier in
this preamble, in the 2012 Equal Access Rule, HUD based its definition
on the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act
of 2009, on the basis that both this statute and HUD's policy sought to
protect LGBT individuals. Subsequently, however, HUD evaluated its
program recipient practices, reviewed research on discrimination of
transgender individuals in shelter settings, solicited input on the
experiences and concerns of both clients and providers, and reviewed
its own guidance, as well as several other Federal agencies' gender-
identity nondiscrimination policies. HUD found helpful, for instance,
that the DOJ's guidance states that a program recipient ``should ask a
transgender beneficiary which group or service the beneficiary wishes
to join,'' but may not ``ask questions about the beneficiary's anatomy
or medical history or make burdensome demands for identity documents.''
As noted in the proposed rule, HUD determined, in light of its review,
that it would be more effective for the specific purpose of ensuring
equal access to HUD programs to separate the definitions of actual and
perceived gender identity and to require that any gender identity
determinations in the context of CPD programs be based on an
individual's self-identification. That does not mean that staff workers
conducting intake procedures must account for perceived gender identity
in determining placement. In fact, it means that staff workers must not
use perceived gender identity and must only place an individual based
on the individual's actual gender identity, without additional
questions about anatomy, medical history, or identification documents.
Transgender and gender nonconforming persons must not be placed based
on perceived gender identity when it is in conflict with an
individual's self-identified gender identity. This approach is
consistent with current research, with HUD's existing guidance, and
with other Federal agency policy. This approach does not require the
provider to make any determination as to an individual's sincerity with
respect to their gender.
In response to the comment with regard to this rule's impact on a
``legal sex category,'' this rule does not provide a definition of
``woman'' or ``sex.'' In this rule, HUD notes that gender identity--and
whether a person identifies with their sex assigned at birth or not--is
a component of sex. As such, HUD believes it was important to recognize
the role of gender identity in its 2012 Equal Access Rule and to
provide further guidance on how individuals are treated based on gender
identity in this rule. In view of its role in ensuring access to
housing for all Americans, HUD could not countenance denying equal
access to shelter on the basis of gender identity, just as it could not
countenance such treatment for characteristics such as race, color,
national origin, or disability. As previously noted, HUD does not
believe it is appropriate to isolate, ostracize, or treat people
differently because of the way others, such as other shelter residents
or shelter employees, view them.
Given the comments requesting guidance on the efforts a provider
may use to identify an individual's gender identity, HUD revised the
proposed rule, in this final rule, to provide clarity on this point.
Specifically, HUD has included a provision in Sec. 5.106(b) that makes
clear that individuals may not be asked to answer intrusive questions,
provide anatomical information, or provide documentary, physical, or
medical evidence of the individual's gender identity. HUD notes that
documents such as identification documents may list an individual's sex
assigned at birth and not an individual's gender identity. Thus, an
identification card or other document is not dispositive of an
individual's gender identity. By including language that prohibits
intrusive questioning or requests for anatomical information,
documentation, or physical or medical evidence, HUD makes clear to
providers, owners, operators, and managers that an individual's self-
identification of gender identity is sufficient evidence of the
individual's gender identity for purposes of making a decision
regarding admission, placement, accommodation, placement, or services
under this final rule. While documentation of gender identity may not
be required for purposes of establishing an individual's gender
identity or determining eligibility for a program, HUD recognizes that
an individual may need to provide documentation of identity in order to
apply for certain types of assistance, such as healthcare, Social
Security benefits, or employment. In instances where the provider
receives documentation and that documentation states a different gender
marker than was identified by the individual as their gender identity,
the provider must continue to serve the individual in accordance with
their self-identified gender identity.
As previously stated, it is not uncommon for transgender persons to
have identification documents that indicate the individual's sex
assigned at birth instead of the individual's gender identity, so
identity documents should not be viewed as evidence contesting an
individual's self-identification of gender identity.
Comment: A commenter stated that the rule recognizes that some
people do not identify as either male or female and that such persons
must be permitted to choose which option is most consistent
[[Page 64776]]
with their gender when accessing single-sex shelters or other buildings
or facilities or services. Commenters asked HUD to clarify how the rule
applies to people who identify in nonbinary, gender-fluid, intersex, or
gender nonconforming terms. Commenters stated that nonbinary
individuals constitute a vulnerable subgroup within the transgender
population, particularly because their identity may be less familiar to
program staff, but they are nevertheless entitled to the same
acceptance and respect for their gender identities as are others. A
commenter said the medical community has widely recognized the
importance of recognizing gender identities other than male or female,
or nonbinary genders, and providing those with nonbinary genders equal
access to services. Commenters stated that an individual whose gender
identity is neither male nor female should have the right to state
which program or facility is most consistent with their identity and
asked HUD to include language to this effect in the preamble to the
final rule. The commenters also asked HUD to discuss in its training
and technical assistance for grantees the rule's application to persons
who are gender nonconforming or who do not identify as male or female,
in training and technical assistance for grantees. Commenters stated
that the rule should expressly state that refusing service or access to
individuals who are gender nonconforming or who do not identify as
either male or female violates the proposed rule. Commenters stated
that when only male or female accommodations are available, equal
access requires that persons who do not identify as either male or
female must be permitted to determine which option is most consistent
with their gender identity. A commenter stated that HUD should amend
its forms and databases to permit individuals to identify as something
other than male or female and to instruct program staff that
individuals must be permitted to self-identify their own gender.
Another commenter said that the rule does not mention intersex persons
or persons with a difference of sexual development (DSD) and,
consistent with current trends in case law, coverage of the rule should
be expanded to include persons with intersex conditions and DSD.
Another commenter said that while it understands that the proposed
regulations are requiring nonbinary users to choose between facilities
for the two majority genders, the commenter believes that, over the
long term, single-sex systems are going to have to become integrated if
they are to cost-effectively serve an expanding variety of gender
identities. This commenter asked HUD to start conceptualizing a new
system that can comfortably accommodate nonbinary users. A commenter
said HUD should encourage recipients to undertake the following: The
development and creation of all-gender spaces; the creation of
policies, practices, and staffing structures that would allow programs
and facilities to be safely designated as all-gender; and the creation
of practices and facility upgrades that afford all residents increased
personal privacy.
HUD Response: HUD appreciates the comments regarding individuals
who do not identify as either male or female and individuals who are
nonbinary, gender-fluid, intersex, or gender nonconforming. While HUD
did not reference each of these groups in its proposed rule or the
regulatory text of this final rule, HUD's use of terminology is not
intended to exclude people because of the words they use to describe
themselves. HUD recognizes that there is more work to do in this area
to ensure that, to the greatest extent possible, all individuals are
treated equally and appropriately accommodated in HUD-funded programs,
shelters, services, and other facilities. In circumstances where an
individual does not identify as male or female and such information is
relevant to placement and accommodation, the individual should be asked
the gender with which the individual most closely identifies. In these
circumstances, the individual is in the best position to specify the
more appropriate gender-based placement as well as the placement that
is most likely to be the safest for the individual--either placement
with males or placement with females.
While HUD appreciates the suggestions about future actions it may
take to better accommodate everyone in shelters, HUD declines to
address these comments in detail as these issues are beyond the scope
of this rulemaking. HUD will consider these issues for future
rulemaking. As the commenters suggest, HUD will also consider training
and guidance for shelter providers, operators, and managers on best
practices for dealing with individuals who do not identify as male or
female and individuals who are nonbinary, intersex, or gender
nonconforming. HUD agrees that individuals in these groups may be
particularly vulnerable, and that training and technical assistance may
be helpful in addressing the needs of these populations of shelter
residents.
Comment: A commenter stated that HUD should not follow the approach
taken by DOJ in implementation of the Prison Rape Elimination Act
because DOJ regulations included provisions allowing correctional
agencies broad discretion to make ``case-by-case'' decisions regarding
whether placement in a male or female facility would ensure the
individual's health and safety. The commenter stated that while DOJ
explained in its rule's preamble that ``an agency may not simply assign
the inmate to a facility based on genital status,'' few, if any, State
agencies are complying with this provision, with the result that
agencies are maintaining their prior practices of automatically placing
individuals exclusively based on their genital anatomy, even when
nominally adopting policy language that mirrors the Federal rule. The
commenter stated that such discretion is not appropriate or permissible
under regulations implementing Federal nondiscrimination requirements.
Another commenter stated that the most essential element of a
successful nondiscrimination policy is the basic rule that housing must
be based on a person's self-identified gender, not on their sex
assigned at birth. A commenter stated that placement should not be
conditioned on whether a transgender person has undergone any medical
treatment or been able to change the gender markers on their
identification documents, or have to look a certain way. Another
commenter stated, citing several examples in the United States and
elsewhere, that shelters that have adopted a rule basing gender on
self-identification, as opposed to sex assigned at birth, report
uniform success in being able to serve and integrate transgender people
into their programs and services.
HUD Response: HUD has never intended to give broad discretion to
recipients and providers to make case-by-case decisions. The proposed
rule required providers of temporary, emergency shelter and services to
document the specific facts, circumstances, and reasoning relied upon
in any case-by-case determination that results in an alternative
admission, accommodation, benefit, or service to an individual or their
family.
To clarify that placement is to be made on the basis of an
individual's self-identification of gender, Sec. 5.106(b) of this
final rule includes a provision stating that individuals may not be
subjected to intrusive questioning relating to their gender identity or
asked to provide anatomical information, documentation, or physical or
medical evidence of gender identity. Therefore,
[[Page 64777]]
this final rule makes clear that placement in accordance with an
individual's gender identity cannot be conditioned on whether a
transgender person has undergone medical treatment, has been able to
change identification documents to reflect their gender identity, or
has a certain appearance or gender expression.
Additionally, as discussed earlier in this preamble, in Sec.
5.106(c) of this final rule, which addresses placement and
accommodation in temporary, emergency shelters and other facilities
with physical limitations or configurations that require and are
permitted to have shared sleeping quarters or shared bathing
facilities, HUD removes the proposed rule language that, under narrow
circumstances, a written case-by-case determination could be made on
whether an alternative accommodation for a transgender individual would
be necessary to ensure health and safety. In its place, HUD provides
that placement and accommodation of individuals in 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 shall be made in accordance with an
individual's gender identity. Further, this revised paragraph (c)
provides for post-admission accommodations, where, after an individual
has been admitted to a shelter or other building and facilities,
providers must take nondiscriminatory steps that may be necessary and
appropriate to address privacy concerns raised by residents or
occupants. This provision for post-admission accommodations applies to
all individuals, regardless of gender identity.
Comment: In contrast to the preceding comment, commenters stated
that the requirements that an accommodation be permitted only in
``narrow'' or ``rare'' circumstances, and then only when ``necessary''
to ensure two specified interests--health and safety-- is too
circumscribed to adequately protect the interests of all residents. The
commenter stated that an accommodation that furthers the interests in
protecting the health and safety of residents should be allowed, for
example, even if not, strictly speaking, ``necessary,'' and not only at
the request of the person ``claiming'' to be transgender. Commenters
stated that, even as to housing facilities that admit both men and
women, residents should not be required to share with persons of the
opposite sex those areas, such as sleeping and bathing areas, properly
reserved to persons of one sex, for reasons of privacy.
HUD Response: As discussed above, this final rule notes that
providers need to take nondiscriminatory steps that may be necessary
and appropriate to address privacy concerns raised by residents or
occupants. HUD stresses the use of the term ``nondiscriminatory'' in
this provision. An example of a nondiscriminatory step to address
privacy concerns would be accommodating a request of a domestic
violence victim who has specific privacy concerns to bathe at specific,
separate times from other shelter or facility occupants.
As HUD has noted, it has studied the issue for 4 years and
determined, following the lead of other Federal agencies, that to
ensure equal access, the general rule must be that individuals are
accommodated in accordance with their gender identity. If HUD were to
provide broader discretion, placement decisions would rely on more
subjective factors that might differ from provider to provider based on
the views, beliefs, and unsubstantiated fears of individual shelter
staff.
Comment: A commenter said the rule prohibits a determination from
being based on complaints of other shelter residents when those
complaints are based on actual or perceived gender identity, but HUD
should provide guidelines to help providers distinguish complaints that
are based on recognition of threat because of a client's biological
sex, as opposed to ``gender identity.''
HUD Response: HUD agrees that the language referenced by the
commenter could cause confusion. HUD, therefore, has removed the
language and makes clear that 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, placements and accommodations
shall be made in accordance with an individual's gender identity. Once
an individual is accommodated, providers shall take appropriate steps
to address privacy concerns raised by all residents and occupants. By
considering complaints, and taking appropriate action in response, a
provider will minimize the risk of harassment occurring among occupants
and between staff and occupants.\23\ Such actions must, however, be
nondiscriminatory.
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\23\ Unlawful harassment in shelters that qualify as dwellings
violates the Fair Housing Act. See Quid Pro Quo and Hostile
Environment Harassment and Liability for Discriminatory Housing
Practices Under the Fair Housing Act, proposed rule, 80 FR 63720
(Oct. 21, 2015).
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Comment: Commenters stated that the rule should clarify that
shelters may give transgender people case-by-case alternative or
modified accommodations only when they request them and not at the
mandate of shelter staff and/or to accommodate the wishes, fears, or
discomfort of others--and that such alternatives or modifications shall
not be based on a person's actual or perceived gender identity.
Commenters also stated that the rule should clarify that shelters shall
provide accommodations requested by a transgender shelter-seeker, and
only when those accommodations are reasonable and appropriate to
protect the health, safety or privacy of that individual. Commenters
stated that a person's ability to request an alternative or modified
placement should not be limited to ``shared sleeping quarters or shared
bathing facilities'' and recommended that the provision for such
accommodations be incorporated into paragraph (b) of Sec. 5.106 (which
is titled Equal Access in accordance with gender identity) rather than
in separate paragraph (d) of Sec. 5.106 (which is titled Referrals). A
commenter said that many shelters find that, where possible, providing
increased privacy for all residents is ideal; for example, private
rooms and bathrooms and showers with locks. A commenter stated that the
rule should mandate that shelters provide unisex bathrooms with
individual showers.
Commenters stated that the rule should clarify that any alternative
or modified placements must provide access to the same or substantially
equivalent services, or a ``comparable alternative program.''
Commenters stated that HUD should clarify that shelters will be in
noncompliance with the rule if they provide some services (e.g., hotel
vouchers) but otherwise deny equivalent services, such as the same
length of stay, other supportive services offered by the shelter, or
services provided at the primary program site due to a lack of
transportation. A commenter stated that a provider that refers an
individual to another program should be required to confirm that the
individual received shelter or services at that alternative program.
HUD Response: As previously discussed, this final rule removes the
case-by-case determination language in the proposed rule and
establishes that individuals in HUD-funded shelters and other buildings
and facilities with physical limitations or configurations that require
and are permitted to have shared sleeping quarters or shared
[[Page 64778]]
bathing facilities must be accommodated in accordance with their gender
identity. This final rule makes clear that providers do not have the
discretion to suggest that individuals may not be accommodated in
shelters that match their gender identity because their gender identity
differs from their sex assigned at birth. As a result, HUD has
eliminated the referral provision that was in Sec. 5.106 (d) of the
proposed rule. Section 5.106(b) of this final rule broadly discusses
how policies and procedures must ensure equal access to CPD programs
based on gender identity.
As discussed earlier in this preamble, the revisions to this final
rule do not preclude the existing possibility that any occupant may
request a referral to an alternate project or that, in such cases,
staff may provide a referral to another project or, where none is
available and funding permits, offer clients a hotel or motel voucher.
HUD appreciates the commenters' concerns that a transgender individual
who is provided an alternative accommodation at the individual's
request should be provided an accommodation that is comparable to the
shelter within which the individual originally sought accommodation and
agrees that when providers make referrals they should ensure that an
opportunity to access equivalent alternative accommodations, benefits,
and services is provided, or the requestor should receive a referral to
a comparable alternative program with availability and equivalent
accommodations, benefits, and services.
HUD is encouraged that many shelters are providing increased
privacy for all residents, such as private rooms and bathrooms and
showers with locks, and as discussed earlier in this preamble, HUD
encourages this where feasible. This rule, however, does not mandate
this configuration. Mandatory configuration of shelters is beyond the
scope of this rulemaking.
Comment: Other commenters stated that they oppose any exception to
the requirement that shelter be provided based on gender identity to
protect the health and safety of shelter employees or other people
staying in the shelter, because such an exception is not necessary and
will be used as pretext to deny shelter to transgender individuals.
Commenters stated that under the proposed rule language, it is not
clear whose health and safety the exception is intended to protect. A
commenter stated that the very allowance of an exception reinforces the
attitude that a person is a threat to others based solely on her or his
status as a transgender individual. The commenter stated that if a
shelter provider is concerned that a transgender individual's behavior
or conduct poses a threat to others' health or safety, then the
provider can and should address that in the same way that it addresses
the problematic conduct of any other person staying in the shelter.
Another commenter stated that the exception, which is ambiguous,
should be removed, because it is unclear from the preamble what kind of
``health and safety'' circumstances would (or should) ever justify
denying shelter to a transgender individual in accordance with their
gender identity. A commenter stated that the exception should apply
only to the health and safety of the shelter seeker, meaning that only
shelter seekers could make these requests for other accommodations for
themselves. Other commenters stated that HUD should take special care
to ensure that providers are not choosing these alternatives in order
to circumvent the general prohibition on discrimination. A commenter
stated that it would be very helpful for HUD to provide guidance in the
form of specific examples of effective policy adjustments, as well as
other ways shelter and housing providers can mitigate actual or
perceived threats to health or safety, in a less burdensome way. A
commenter stated that guidance is needed to address what covered
providers should do in scenarios where they lack financial resources to
provide alternative accommodations or referrals, so as not to violate
the rule.
HUD Response: HUD appreciates these comments and, as discussed
previously, HUD has revised the rule to clarify that placement and
accommodation must be made in accordance with an individual's gender
identity.
Comment: A commenter stated that the goals of this rule could
conflict with the goals of ``Violence Against Women Reauthorization Act
of 2013: Implementation in HUD Housing Programs,'' a rule that seeks to
offer expanded protections to victims of domestic violence, dating
violence, sexual assault, and stalking within HUD-assisted and HUD-
insured housing. The commenter suggested that HUD provide additional
guidance to operating facilities with shared sleeping quarters on how
to offer alternative accommodations to transgender individuals when
there are residents that are sensitive to sharing facilities with the
opposite sex due to their experiences with domestic violence.
HUD Response: HUD's proposed rule implementing the housing
protections of VAWA, which as the commenter noted would expand
protections to victims of domestic violence, dating violence, sexual
assault, and stalking in HUD-assisted and HUD-insured housing, does not
conflict with this final rule. HUD's proposed rule on VAWA would
implement statutory requirements that: (1) Prohibit housing providers
under certain HUD programs (covered housing providers) from denying or
terminating assistance or occupancy rights to individuals because they
are or have been victims of domestic violence, dating violence, sexual
assault, or stalking; (2) require covered housing providers to notify
tenants and applicants of their rights under VAWA, and detail what
documentation covered housing providers may ask for; (3) require
covered housing providers to create emergency transfer plans; and (4)
provide for lease bifurcations. Nothing in HUD's rule proposing to
implement VAWA contradicts this rulemaking requiring that individuals
be housed and receive services in accordance with their gender
identity.
Further, as HUD explained in the CPD Equal Access proposed rule,
VAWA imposed a new grant condition that prohibits discrimination by
recipients of grants administered by DOJ, including grants to provide
housing assistance for survivors of domestic violence. Although this
provision relates to DOJ, and not to HUD, HUD noted that on April 9,
2014, DOJ's published guidance entitled ``Frequently Asked Questions:
Nondiscrimination Grant Condition in the Violence Against Women
Reauthorization Act of 2013,'' which addresses how a recipient of DOJ
funds can operate a single-sex facility funded through VAWA and not
discriminate on the basis of gender identity. The DOJ guidance states
that recipients that operate sex-segregated or sex-specific programs
should assign a beneficiary to the group or service that corresponds to
the gender with which the beneficiary identifies, and may consider on a
case-by-case basis whether a particular housing assignment would ensure
the victim's health and safety, but recipients may not make a
determination about services for one beneficiary based on the
complaints of another beneficiary when those complaints are based on
gender identity. The guidance further states that, for the purpose of
assigning a beneficiary to sex-segregated or sex-specific services,
best practices dictate that the recipient should ask a transgender
beneficiary which group or service the beneficiary wishes to join, but
the recipient may not ask questions about the beneficiary's anatomy or
medical history or make burdensome demands for identity documents.
[[Page 64779]]
HUD's rule requires that individuals be accommodated in accordance
with their gender identity. It is beyond the scope of this rule to
detail methods for best serving victims of domestic violence, dating
violence, sexual assault, or stalking. However, as discussed earlier,
this final rule requires that providers must take nondiscriminatory
steps that may be necessary and appropriate to address privacy concerns
raised by all residents or occupants. HUD notes that both victims and
perpetrators of domestic violence and other VAWA crimes include persons
who are transgender or gender nonconforming individuals and persons who
are not.
Comment: Commenters asked that HUD include other CPD programs that
will be active in the near future, including the Housing Trust Fund and
the Rural Housing Stability Assistance program, or provide an indicator
that the list is nonexhaustive so the Secretary can add more CPD
programs.
HUD Response: HUD's intent was to cover all CPD programs, as noted
in the preamble to the proposed rule. Therefore, HUD makes clear in
Sec. 5.106(a) that additional CPD programs, such as the Housing Trust
Fund and Rural Housing Stability Assistance programs, are included.
Comment: Commenters stated that the rule should clarify that
transgender persons have a right to housing and treatment consistent
with their gender identity in all circumstances--in the preamble and
training and technical assistance. Other commenters said it is
essential that the rule address more directly the problem of violence,
including the high rates of sexual assault, against LGBT and gender
nonconforming persons in federally funded shelters.
HUD Response: HUD's 2012 Equal Access Rule and this CPD Equal
Access Rule explicitly acknowledge the higher rate of discrimination
and acts of violence experienced by transgender persons and both rules
address the issue that transgender individuals and other gender
nonconforming persons must be able to participate in HUD programs on an
equal basis as all other program participants. HUD guidance and
training on its Equal Access rules cover these subjects.
Comment: The rule must address public and staff perceptions.
HUD Response: The final rule makes clear that transgender and other
gender nonconforming individuals are to be admitted, placed,
accommodated, and provided with services in accordance with their
gender identity. Public and staff perceptions are not an appropriate
basis for denial or limitation of access. Any additional rulemaking to
address public and staff perceptions of transgender and gender
nonconforming persons is beyond the scope of this rulemaking. HUD
acknowledges, however, that such topics may be appropriate for training
and technical assistance materials for shelter providers.
Comment: Commenters stated that HUD-funded programs should be
required to create and implement written policies specifying how they
will combat harassment, violence, and sexual assault and, in
particular, how they will protect the health and safety of LGBT and
gender nonconforming persons and others who are at increased risk of
sexual violence. A commenter recommended that HUD require its
recipients and subrecipients to create written policy and guidelines
combating violence against persons marginalized due to their sexual
orientation or gender identity and to require data collection to help
monitor accountability. Commenters stated that HUD should provide
guidance detailing necessary provisions of such policies and
recommended best practices, for example, guidance or best practices
pertaining to the shelter-seeker's own individualized safety
assessment, through training and technical assistance for grantees.
Commenters also stated that HUD should specify that the failure to
create and implement such policies could result in noncompliance with
the regulations and, thereby, jeopardize Federal funding and/or result
in HUD taking action under its regulations. Another commenter stated
that it is unclear who has the responsibility to establish and amend
policies and procedures under the rule, so HUD should clarify that the
covered recipients, subrecipients, owners, operators, managers, and
providers must create, implement, and revise these policies and
procedures as necessary. The commenter stated that HUD should identify
in a subsequent notice the specific types of individuals and entities
that have these duties within each housing program. The commenter also
stated that HUD should provide sample policies and procedures,
especially regarding privacy and security, so that covered individuals
or entities that are unfamiliar with gender identity issues can have
access to models in devising their own policies and procedures.
Commenters stated that the rule should mandate training for shelter
staff as a prerequisite to receiving HUD funding. Another commenter
stated that guidance from advocacy organizations suggests that ongoing
resident training should be implemented in addition to current HUD-
required staff training. A commenter stated that HUD should ensure that
community organizations are made aware of the rule, once the rule is
implemented, in order to better support their outreach work to
transgender and gender nonconforming people in poverty.
Other commenters asked HUD to provide training on the requirement
that recipients and subrecipients must treat transgender individuals
respectfully by using an individual's self-identified name and
pronouns, regardless of whether they have been able to legally change
it.
HUD Response: HUD agrees with the commenters that successful
implementation of this rule depends in no small part on guidance and
training. HUD undertook intensive training efforts following
publication of its 2012 Equal Access Rule and 2015 Notice CPD-15-02,
and HUD intends to do the same for this CPD Equal Access Rule. With
respect to commenters' questions about the establishment of policies,
Sec. 5.106(b) of this final rule (and of the proposed rule) requires
that the admissions, occupancy, and operating policies and procedures
of recipients, subrecipients, owners, operators, managers, and
providers (covered by this rule), including policies and procedures to
protect privacy, health, safety, and security, shall be established or
amended, as necessary, and administered in a nondiscriminatory manner
so: (1) Equal access to programs, shelters and other buildings and
facilities, benefits, services, and accommodations is provided to an
individual in accordance with the individual's gender identity, and in
a manner that affords equal access to the individual's family; (2) an
individual is placed, served, and accommodated in accordance with the
individual's gender identity; (3) an individual is not subjected to
intrusive questioning or asked to provide anatomical information or
documentary, physical, or medical evidence of the individual's gender
identity; and (4) consistent with Sec. 5.105(a)(2),eligibility
determinations are made and assisted housing is made available in CPD
programs without regard to actual or perceived gender identity.
Comment: A commenter stated that the rule's case-by-case analysis,
training, and referral requirements will involve more time and
resources than HUD estimates. The commenter stated that HUD should
provide additional resources and tools to program grantees so that
proper training can be
[[Page 64780]]
conducted, particularly for small grantees with limited resources.
HUD Response: As discussed earlier, this final rule eliminates the
provision regarding a case-by-case analysis. As HUD noted in response
to the preceding comment, HUD will undertake training and provide
training and guidance to assist recipients and subrecipients under the
CPD programs covered by this rule.
Comment: Commenters stated that they support the elimination of the
inquiries prohibition provision for the following reasons: (1) The
prohibition would likely cause confusion in the context of applying
Sec. 5.106, as it may be construed to prohibit any discussion of
gender identity and (2) it appears to prohibit the routine and
voluntary collection of demographic data regarding sexual orientation
and gender identity for purposes of program evaluation--and, while an
inquiry regarding sexual orientation or gender identity may constitute
discrimination or be evidence of discrimination under the rule,
inquiries for legitimate and nondiscriminatory purposes should be
permitted. Commenters stated that they supported the removal of the
prohibition to the extent that the final rule is clear that shelter and
housing providers can only inquire about an applicant's or resident's
sexual orientation and gender identity for lawful purposes; for
example, to determine unit size and as part of the routine and
voluntary collection of demographic data concerning sexual orientation
and gender identity for program evaluation, so long as the data is
collected and used for nondiscriminatory purposes in a
nondiscriminatory fashion. A commenter stated, in support of removing
the prohibition, and providing suggested language, that they urged HUD
to require that specific protocols be put in place to protect the
confidentiality of information about sexual orientation or transgender
status.
HUD Response: HUD is committed to ensuring the safety and privacy
of all individuals, including transgender and gender nonconforming
individuals, in CPD programs. In the proposed rule, HUD expressed its
intent in proposing the removal of the inquiries prohibition. HUD
emphasized that it would only permit recipients or subrecipients to
inquire about a person's sexual orientation or gender identity for
lawful, nondiscriminatory purposes. In the final rule, to prohibit
inappropriate inquiries related to gender identity, HUD included
language in Sec. 5.106(b) stating that it would be inappropriate to
subject individuals to intrusive questioning or ask them to provide
anatomical information or documentary, physical, or medical evidence of
the individual's gender identity. In addition, as noted previously in
this preamble, CPD previously issued guidance, ``Appropriate Placement
for Transgender Persons in Single-Sex Emergency Shelters and Other
Facilities'' (Notice CPD-15-02, Feb. 20, 2015), which outlines best
practices for appropriate and inappropriate inquiries related to sex
and provides guidance, and recommends staff training, on addressing
safety or privacy concerns. HUD intends to issue further guidance in
connection with the issuance of this final rule.
Comment: A commenter stated, citing recommended guidance and model
policies, that Massachusetts prohibits gender-based inquiries only in
cases where shelter guests are perceived as transgender, suggesting
that implementation of the proposed rule would be possible without
removing the prohibition.
HUD Response: As noted in HUD's proposed rule, removal of the
inquiries prohibition would allow temporary, emergency shelters and
other facilities with physical limitations or configurations that
require and are permitted to have shared sleeping quarters or shared
bathing facilities to ask the individual's gender identity, and it
would permit inquiries of the individual's gender identity and sexual
orientation to determine the number of bedrooms to which a household is
entitled. This is an inquiry that could be asked of all individuals,
and not solely of those who are perceived to be transgender. Further,
as HUD has stated, removal of the inquiries prohibition also reaffirms
that HUD permits mechanisms for voluntary and anonymous reporting of
sexual orientation or gender identity for compliance with data
collection requirements of State and local governments or Federal
assistance programs.
Comment: Commenters stated that the rule should expressly prohibit
program staff from asking individuals questions about their anatomy,
medical procedures, or medical history or making requests for identity
documents or other documentation of gender as a precondition for being
housed consistent with their gender identity,
HUD Response: Although the final rule removes the provision of
Sec. 5.105 that prohibited inquiries into an individual's sexual
orientation or gender identity for purposes of facilitating providers'
compliance with the requirement of Sec. 5.106 that an individual is to
be admitted, placed, accommodated, and provided services in accordance
with the individual's gender identity, HUD agrees with commenters that
transgender and gender nonconforming individuals should not be required
to answer invasive questions about their anatomy or medical history in
order to be accommodated and provided services in CPD programs. To
address this concern, HUD has revised Sec. 5.106(b) to prohibit
intrusive questions related to gender identity and prohibit requests
for anatomical information and requests for documentary, physical, or
medical evidence.
Comment: Commenters recommend that HUD emphasize in the preamble,
and in training and technical assistance, the importance of protecting
the privacy of information related to a shelter seeker's sexual
orientation and gender identity. A commenter stated that transgender
people in particular face serious risks of danger, including verbal
harassment and physical assault, when their transgender status or
gender identity is revealed without their consent. The commenter said
that steps to keep a shelter seeker's sexual orientation and/or gender
identity confidential include, without limitation: (1) Safeguarding all
documents and electronic files, (2) containing this information and
having conversations about these topics in private to prevent
disclosure, (3) establishing explicit nondiscrimination provisions, (4)
ensuring safe environments in programs and shelters, (5) implementing
rigorous confidentiality safeguards, and (6) ensuring that shelter
staff members receive appropriate training. The commenter said that
successful implementation of these important requirements will
facilitate the collection of much needed data, allowing HUD to better
determine the populations its programs serve, their needs and consumer
experiences, and their use of programs and facilities.
HUD Response: Many of CPD's programs that govern temporary,
emergency shelters and other buildings and facilities impose strict
confidentiality requirements to ensure the privacy of individuals that
are housed in these facilities. (See Sec. Sec. 574.440, 576.500(x),
578.103(b) and (d)(2), and 578.23(c)(4)(i).) This final rule requires
that privacy be considered in adopting admissions, occupancy, and
operating policies and procedures in Sec. 5.106(b) and provides that
shelters and other buildings and facilities take nondiscriminatory
steps that may be necessary and appropriate to address privacy concerns
raised by residents or occupants in Sec. 5.106(c). Further
[[Page 64781]]
guidance will address privacy and confidentiality in data collection.
Comment: Commenters stated that HUD should clarify in the preamble
to the final rule, and in training and technical assistance to its
field staff, that inquiries that are used to limit the provision of
shelters or housing, to harass an individual, or to further any other
discriminatory purpose fall under the prohibition on discrimination.
Commenters stated that, by contrast, HUD should state clearly in those
areas that the routine and voluntary collection of demographic
information from all clients or program participants is permissible, so
long as it is collected and used in a nondiscriminatory fashion.
HUD Response: HUD appreciates the commenters raising this issue and
will address this issue in guidance. HUD reiterates that conduct that
violates the rule may also violate the Fair Housing Act if the facility
is subject to the Fair Housing Act's nondiscrimination requirements and
the conduct is because of race, color, religion, national origin,
familial status, sex, or disability.
IV. Findings and Certifications
Regulatory Review--Executive Order 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). Under
Executive Order 12866 (Regulatory Planning and Review), a determination
must be made on 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. Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. A
determination was made that this final rule is a ``significant
regulatory action'' as defined in section 3(f) of Executive Order 12866
(although not economically significant, as provided in section 3(f)(1)
of that order).
This final rule is consistent with Administration policy in its
direction that providers in all CPD programs must ensure that their
policies and procedures to protect privacy, health, safety, and
security are administered so that equal access is provided to HUD
programs in accordance with an individual's gender identity. This final
rule also clarifies how 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 comply with the requirement that equal access
be provided to programs, buildings, facilities, services, benefits, and
accommodations in accordance with an individual's gender identity. This
clarification will benefit clients accessing CPD-funded programs,
including those with temporary, emergency shelters and other buildings
and facilities, by assuring that all clients receive equal access and
will benefit the CPD-funded facilities by making compliance with HUD's
equal access requirements easier.
These requirements benefit all occupants by ensuring that providers
understand that they need to be responsive to individual health,
safety, security, and privacy concerns, while ensuring that they do not
take any discriminatory steps to address these concerns. This final
rule also amends the definition of gender identity and sexual
orientation in Sec. 5.100 to clarify the difference between actual and
perceived gender identity, which is necessary to the adoption of Sec.
5.106, and to reflect recent changes in the definition of sexual
orientation that uses updated terminology but does not expand the
coverage of the term. This final rule eliminates the prohibition on
inquiries relating to sexual orientation or gender identity in Sec.
5.105(a)(2)(ii). Both of these changes make it easier for recipients
and subrecipients of CPD funding, as well as owners, operators, and
managers of shelters, buildings, and other facilities, and providers of
services funded by CPD programs to comply with the requirements of both
Sec. Sec. 5.105(a)(2)(i) and 5.106.
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.
Approximately 4,000 providers participating in the CPD programs covered
by this rule are small organizations, but the rules requirement that
organizations maintain records will be limited. Organizations are
already required to maintain up-to-date policies and procedures in
accordance with HUD guidance and regulations. The only change is that
all CPD programs must now maintain records of prior policies and
procedures for up to 5 years from when they make changes to comply with
these requirements. HUD believes that these limited recordkeeping
requirements on small organizations are reasonable to ensure equal
access to CPD programs, facilities, services, benefits, and
accommodations in accordance with an individual's gender identity.
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.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless the
collection displays a currently valid OMB control number. The
information collection requirements for the CPD programs impacted by
this rule--HOME, CDBG (State and entitlement), HOPWA, ESG, and CoC--
have been approved by OMB and assigned OMB control numbers 2506-0171,
2506-0085, 2506-0077, 2506-0133, 2506-0089, and 2506-0199. The
information collection requirements for CPD's Housing Trust Fund and
Rural Housing Stability Assistance programs will be included when those
programs are implemented.
Environmental Impact
This rule sets forth nondiscrimination standards. Accordingly,
under 24 CFR 50.19(c)(3), this rule is categorically excluded from
environmental review under the National Environmental Policy Act of
1969 (42 U.S.C. 4321).
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either: (i) imposes substantial direct compliance costs on State and
local governments and is not required by statute or (ii) preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive order. This rule does 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.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for Federal agencies to
assess the effects
[[Page 64782]]
of their regulatory actions on State, local, and tribal governments and
on the private sector. This rule does not impose any Federal mandates
on any State, local, or tribal governments, or on the private sector,
within the meaning of the UMRA.
List of Subjects in 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.
Accordingly, for the reasons stated in the preamble, and in
accordance with HUD's authority in 42 U.S.C. 3535(d), HUD amends 24 CFR
part 5 as follows.
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
0
1. The authority citation for part 5 continues to read as follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n,
3535(d), Sec. 327, Pub. L. 109-115, 119 Stat. 2936, and Sec. 607,
Pub. L. 109-162, 119 Stat. 3051.
0
2. In Sec. 5.100, revise the definitions for ``Gender identity'' and
``Sexual orientation'' to read as follows:
Sec. 5.100 Definitions.
* * * * *
Gender identity means 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. Perceived gender identity
means the gender with which a person is perceived to identify based on
that person's appearance, behavior, expression, other gender related
characteristics, or sex assigned to the individual at birth or
identified in documents.
* * * * *
Sexual orientation means one's emotional or physical attraction to
the same and/or opposite sex (e.g., homosexuality, heterosexuality, or
bisexuality).
* * * * *
Sec. 5.105 [Amended]
0
3. In Sec. 5.105, remove paragraph (a)(2)(ii) and the paragraph
(a)(2)(i) heading and redesignate paragraph (a)(2)(i) as (a)(2).
0
4. Add Sec. 5.106 to read as follows:
Sec. 5.106 Equal access in accordance with the individual's gender
identity in community planning and development programs.
(a) Applicability. This section applies to assistance provided
under Community Planning and Development (CPD) programs, including
assistance under the following CPD programs: HOME Investment
Partnerships program (24 CFR part 92), Housing Trust Fund program (24
CFR part 93), Community Development Block Grant program (24 CFR part
570), Housing Opportunities for Persons With AIDS program (24 CFR part
574), Emergency Solutions Grants program (24 CFR part 576), Continuum
of Care program (24 CFR part 578), or Rural Housing Stability
Assistance Program (24 CFR part 579). The requirements of this section
apply to recipients and subrecipients, as well as to owners, operators,
and managers of shelters and other buildings and facilities and
providers of services funded in whole or in part by any CPD program.
(b) Equal access in accordance with gender identity. The
admissions, occupancy, and operating policies and procedures of
recipients, subrecipients, owners, operators, managers, and providers
identified in paragraph (a) of this section, including policies and
procedures to protect privacy, health, safety, and security, shall be
established or amended, as necessary, and administered in a
nondiscriminatory manner to ensure that:
(1) Equal access to CPD programs, shelters, other buildings and
facilities, benefits, services, and accommodations is provided to an
individual in accordance with the individual's gender identity, and in
a manner that affords equal access to the individual's family;
(2) An individual is placed, served, and accommodated in accordance
with the gender identity of the individual;
(3) An individual is not subjected to intrusive questioning or
asked to provide anatomical information or documentary, physical, or
medical evidence of the individual's gender identity; and
(4) Eligibility determinations are made and assisted housing is
made available in CPD programs as required by Sec. 5.105(a)(2).
(c) Placement and accommodation in temporary, emergency shelters
and other buildings and facilities with shared sleeping quarters or
shared bathing facilities--(1) Placement and accommodation. Placement
and accommodation of an individual 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 shall be made in accordance with
the individual's gender identity.
(2) Post-admission accommodations. A recipient, subrecipient,
owner, operator, manager, or provider must take nondiscriminatory steps
that may be necessary and appropriate to address privacy concerns
raised by residents or occupants and, as needed, update its admissions,
occupancy, and operating policies and procedures in accordance with
paragraph (b) of this section.
(d) Documentation and record retention. Providers shall document
and maintain records of compliance with the requirements in paragraph
(b) of this section for a period of 5 years.
Dated: September 14, 2016.
Juli[aacute]n Castro,
Secretary.
[FR Doc. 2016-22589 Filed 9-20-16; 8:45 am]
BILLING CODE 4210-67-P