HUD published Notice CPD-15-02 on February 20, 2015, providing further guidance on the placement of transgender persons in single-sex emergency shelters and other facilities. This guidance is provided in order to clarify the final rule published by HUD on February 3, 2012. That final rule requires that HUD’s housing programs be made available to individuals and families without regard to actual or perceived sexual orientation, gender identity, or marital status.
HUD has determined that it is necessary to provide additional guidance on how best to provide shelter to transgender persons in a single sex-facility. While the guidance officially applies only to relevant HUD assisted facilities, it may also assist owners of non-HUD-assisted properties in states or localities that provide fair housing protection based on sexual orientation or gender identity.
The HUD guidance applies to the following programs:
- Emergency Solutions Grants (ESG);
- Continuum of Care (CoC); and
- Housing Opportunities for Persons with Aids (HOPWA)
The Notice also provides guidance on appropriate and inappropriate inquiries related to a potential or current client’s sex for the purposes of placing transgender persons in temporary, emergency shelters or other facilities with shared sleeping areas or bathrooms. It should be noted that the guidance does not address the “legality” of single-sex facilities except to point out that all facilities must comply with applicable civil rights laws, including the Fair Housing Act (which bans discrimination on the basis of sex), and HUD regulations.
HUD is relying on guidance from other agencies and for other programs in developing their own guidance. For example, in the Violence Against Women Reauthorization Act frequently asked questions, the Department of Justice stated:
- A recipient that operates a sex-segregated or sex-specific program should assign a beneficiary (i.e., the individual seeking services) to the group or service which corresponds to the gender with which the beneficiary identifies, with the following considerations. In deciding how to house a victim, a recipient that provides sex-segregated housing may consider on a case-by-case basis whether a particular housing assignment would ensure the victim’s health and safety. A victim’s own views with respect to personal safety deserve serious consideration. The recipient should ensure that its services do not isolate or segregate victims based upon actual or perceived gender identity. A recipient 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.
In the employment context, the Office of Personnel Management (OPM) has issued Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, which says that “once an employee has begun living and working full time in the gender that reflects his or her gender identity, the employees should have access to restrooms and … locker room facilities consistent with their gender identity. While a reasonable temporary compromise may be appropriate in some circumstances, transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure … in order to have access to facilities designated for use by a particular gender.”
HUD Guidance
Per this Notice, HUD assumes that decisions regarding placement in a single-sex emergency shelter or other facilities will place a potential client (or current client seeking a new assignment) in a shelter or facility that corresponds to the gender with which the person identifies, taking health and safety concerns into consideration. A client’s own views with respect to personal health and safety should be given serious consideration in making the placement. HUD also assumes that a provider will not make an assignment based on complaints of another person when the sole stated basis of the complaint is the client’s non-conformance with gender stereotypes.
Appropriate and Inappropriate Inquiries Related to Sex
For temporary, emergency shelters with shared sleeping areas or bathrooms, the Equal Access Rule permits shelter providers to ask potential and current clients seeking a new assignment their sex. If the provider is uncertain of the client’s sex or gender identity, the provider should inform the client that the agency provides shelter based on the gender with which the individual identifies. There is no basis for a provider to deny access to a single sex emergency shelter or facility solely because the provider possesses identity documents indicating a sex different that the gender with which the client identifies. The provider may not ask questions or otherwise seek information or documentation concerning the person’s anatomy or medical history. Nor may the provider consider the client ineligible for an emergency shelter or other facility because his or her appearance or behavior does not conform to gender stereotypes.
Privacy
If a client expresses safety or privacy concerns, or if the provider becomes aware of safety or privacy concerns, the provider must take reasonable steps to address those concerns. Examples include:
- Addition of a privacy partition or curtain;
- Provision to use a nearby private restroom or office; or
- A separate changing schedule
To the extent feasible, the provider should work with the design of the facility to provide for bathroom and dressing area privacy. Toilet stalls should have doors and locks and there should be separate shower stalls.
The issue of services to transgendered individuals is evolving. This guidance is useful in assisting providers of affected housing as they navigate this difficult area, but it cannot address all potential circumstances. Training of staff and contractors is essential to ensure full compliance with HUD requirements and with some state and local fair housing laws.