AG Herring Opposes Federal Effort To Weaken Protections For Transgender And Gender Noncomforming Individuals In Shelters

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mark herring
Virginia AG Mark Herring speaks at an event at the Naro Theater in Norfolk in 2017.

Attorney General Mark R. Herring yesterday joined a coalition of 23 attorneys general in opposing the U.S. Department of Housing and Development’s (HUD) new proposed rule that would weaken protections for transgender and gender nonconforming individuals in HUD-funded shelters.

The proposed rule seeks to rescind and replace HUD’s 2016 Equal Access Rule, which created a uniform national nondiscrimination standard for admissions and placement of transgender and gender nonconforming persons in federally-funded single-sex temporary and emergency shelters and other facilities not covered by the Fair Housing Act (FHA). In the comments submitted today, the coalition argues that HUD should withdraw the proposed rule because it will inflict substantial and needless harm upon transgender and gender nonconforming individuals.

“Unfortunately, transgender and gender nonconforming people already face high levels of homelessness and housing insecurity and the Trump Administration’s proposed rule change would endanger the health, safety and well-being of these individuals even more,” said Attorney General Herring. “This proposed rule is just another cruel attempt by the Trump Administration to allow discrimination against the LGBT community. My colleagues and I will continue to fight back against the Trump Administration’s attacks on LGBT Americans.”

Attorney General Herring and his colleagues assert that temporary and emergency shelters often provide the best access point for individuals seeking safe housing and access to social service supports, a need made even more critical during the COVID-19 pandemic and resulting economic crisis. Research has shown that admissions and placement of individuals in single-sex facilities is most safely done in accordance with an individual’s gender identity. The proposed rule would permit shelters to establish policies and procedures regarding admissions and placement of transgender and gender nonconforming persons in single-sex temporary, emergency shelters and other buildings and facilities not covered by the FHA based on a shelter provider’s perception of an individual’s “biological sex.” The proposed rule will result in the exclusion of transgender and gender nonconforming individuals from shelters and will expose countless individuals to unnecessary risk.

The 2016 Equal Access Rule defined gender identity as “the gender with which a person identifies, regardless of sex assigned to that person at birth and regardless of the person’s perceived gender identity,” and therefore requires placement and accommodation decisions be made based on an individual’s gender identity. This uniform standard successfully protects and provides accommodations for transgender and gender nonconforming persons without imposing burdens upon the religious liberties, privacy, or safety of other shelter residents. The 2016 Equal Access Rule also requires that shelter providers arrange for privacy accommodations, where necessary, to enhance safety and privacy for all residents.

In the comments, Attorney General Herring and his colleagues argue that the reasons HUD cites to justify the proposed rule do not support rescinding the life-saving provisions of the 2016 Equal Access Rule, which were grounded in substantial research, evidence, and demonstrated community need. Additionally, the attorneys general state that the proposed rule:

  • Offers no justification for ignoring evidence that supported HUD’s 2016 change to the definition of gender identity.
  • Offers no justification for replacing a standard for admissions and placement that respected individuals’ self-identity and maximized the safety of all residents.
  • Fails to address the impact of its proposed changes on the safety of transgender and gender nonconforming individuals.
  • Ignores the overwhelming evidence showing that housing transgender women in women’s shelters has proven to be an effective and safe option for individuals facing homelessness.
  • Is impractical and cannot be implemented in a nondiscriminatory manner.

In July 2019, Attorney General Herring joined a coalition of 16 attorneys general sent a letter to HUD Secretary Ben Carson urging him to rescind the proposed repeal of the Equal Access Rule, arguing that it would compromise the safety of transgender and gender nonconforming individuals staying in homeless shelters.

Joining Attorney General Herring in filing today’s comments are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin.

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