On July 1, the U.S. Department of Housing and Urban Development (HUD) announced plans to modify the 2016 Equal Access Rule, which required “all HUD funded housing services to be provided without discrimination based on sexual orientation or gender identity,” according to the agency’s news release. The proposed modification would allow “single-sex or sex-segregated” homeless shelters to deny entry to transgender people.
The new rule, which was published for public comment on July 24, provides guidance on how to determine whether “an individual’s gender identity does not match their biological sex,” and effectively codifies gender profiling on the basis of one person’s perception of secondary sexual characteristics. When shelter-providers, in this case, are attempting to determine an individual’s sex assigned at birth, “HUD believes that reasonable considerations may include, but are not limited to a combination of factors such as height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics...”
It is important to note that trans people experience homelessness disproportionately. According to the 2015 U.S. Transgender Survey, conducted by the National Center for Transgender Equality, “nearly one-third of transgender and gender non-binary people experience homelessness at some point in their life; about one-half of transgender and non-binary people who identify as Black, Middle Eastern, Multiracial, or undocumented experienced homelessness at some point in their life.”
Trans people also already face discrimination when trying to access shelter space. According to data collected by the Equal Rights Center and published by the Center for American Progress, prior to the creation of the Equal Access Rule, “only 30% of shelters across [the four states studied] would appropriately house trans women with other women, and one in five shelters would turn them away outright.”
Despite the Equal Access Rule, many homeless trans people are still unsheltered while experiencing homelessness. The National Alliance to End Homelessness collected Point-in-Time Count data, which counts the number of people experiencing homelessness on a single night each January, and found that “transgender people are more likely to be unsheltered than their cisgender peers, and those who are unsheltered have considerably more health and safety challenges than those who are sheltered.”
In Colorado, 34 percent of homeless trans people are unsheltered, according to those same data. But Colorado is a state with robust legal protections for sexual orientation and gender identity. In neighboring New Mexico, which doesn’t have such protections, 89 percent of homeless trans people are unsheltered.
HUD’s proposed rule will not only exacerbate those numbers, but will also make things difficult for cisgender women experiencing homelessness. The HUD guidance on clocking trans women is rooted in the cissexist notion that trans people are not only inherently deceptive, but that we are easy to spot. These kinds of rules — instead of preventing trans people from accessing a space — tend to lead to harassment of both trans women and gender nonconforming cis women, who were assigned female at birth.
Following the passage of “bathroom bills” in states like North Carolina and Texas in 2016, there was a deluge of “lesbian kicked out of bathroom” news stories, in which butch-presenting cis women were removed from bowling alleys, bars, and even a McDonald’s for using the women’s room. It’s not difficult to imagine how the new HUD rule would not only allow for discrimination of trans people, but of any woman who doesn’t look exactly like what the shelter employee at that moment thinks a woman should look like.
The guidance given about “height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics” is ridiculous. These are arbitrary signifiers that many cis women also have, and that many trans women don’t. It is profiling and gender policing, and it is being weaponized against some of the most marginalized people in our communities during a pandemic and subsequent economic downturn and eviction crisis.
As Atlantic writer Andrew Serwer said in 2018, “the cruelty is the point.”