Committee Reports

Opposition to Proposed HUD Rule Making Admission or Placement Determinations Based on Sex


The Civil Rights Committee and the LGBTQ Rights Committee submitted comments in response to the Department of Housing and Urban Development’s (HUD) proposed rule change, published in the Federal Register on July 24, 2020, entitled “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs,” Docket No. FR-6152-P-01. The Committees urge that the Proposed Rule be withdrawn in its entirety and that HUD return to its prior rule, the Equal Access Rule of 2016. Under the 2016 rule, single-sex HUD shelters are required to allow transgender people to be in a shelter that corresponds with their gender. The Proposed Rule purports to address deficiencies in the 2016 rule and allow HUD shelters to assign people based on “good faith” determinations of their sex assigned at birth rather than based on the person’s gender identity. “HUD should reject the Proposed Rule and go back to its Equal Access Rule of 2016, modeled on the successes of New York City’s shelter system and the work of Stonewall Veteran Jay Toole. HUD should strive to make a fairer and more just shelter system nationwide, and one that comports with federal law.”


FR-6152-P-01 – Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs; Department of Housing and Urban Development – July 24, 2020


September 22, 2020

Submitted via

Regulations Division, Office of General Counsel
Department of Housing and Urban Development
451 7th Street SW, Room 10276
Washington, DC 20410-0500

Re:      HUD Docket No. FR-6152-P-01, RIN 2506-AC53: Comments in Response to Proposed Rulemaking: Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs

Dear Office of General Counsel:

We write to you on behalf of the New York City Bar Association’s (“City Bar”) Lesbian, Gay, Bisexual, Transgender, and Queer Rights Committee and Civil Rights Committee to respond to the Department of Housing and Urban Development’s (“HUD”) Proposed Rule change published in the Federal Register on July 24, 2020, entitled “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs,” Docket No. FR-6152-P-01 (the “Proposed Rule”). We urge that the Proposed Rule be withdrawn in its entirety and that HUD return to its prior rule, the Equal Access Rule of 2016 (“Equal Access Rule”).[1]

As an organization of 25,000 members, the City Bar’s mission is to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and advocate for access to justice in support of a fair society. In doing so, the City Bar addresses a broad range of policy issues, which include civil rights, housing law, immigration and nationality law, social welfare law, disability law, and laws affecting children and families.


Although the Proposed Rule purports to address deficiencies in the Equal Access Rule that impose undue restrictions that are “not supported by congressional enactment, minimize[] local control, burden[] religious organizations, manifest[] privacy issues, and impose regulatory burdens” on single-sex shelter facilities, the effect and apparent purpose of the proposal is to limit the rights and protections afforded to the lesbian, gay, bisexual, transgender, non-binary, gender nonconforming, intersex, and queer (“LGBTQ”) community, particularly transgender people. The Proposed Rule would roll back vital protections for the transgender and gender nonconforming (“TGNC”) community at the federal level.  HUD should reject the Proposed Rule and go back to its Equal Access Rule of 2016, modeled on the successes of New York City’s shelter system and the work of Stonewall Veteran Jay Toole. HUD should strive to make a fairer and more just shelter system nationwide, and one that comports with federal law.[2]


A.        The Proposed Rule Increases Risks to Homeless Transgender People.

1.      Existing Dangers for Transgender People.

According to the 2015 U.S. Transgender Survey, nearly one-third of all transgender and gender non-binary people experience homelessness at some point in their life;[3] 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.[4] Over half of transgender survey respondents who have stayed in a shelter reported being verbally harassed, physically attacked, and/or sexually assaulted at the shelter because of their gender identity.[5] Being unsheltered is especially dangerous for transgender people, particularly transgender people of color, who face harassment and threats from private individuals and elevated rates of policing and violence in police custody.[6] Moreover, only 50% of LGBTQ people live in states that explicitly prohibit housing discrimination based on sexual orientation and gender identity.[7] The Equal Access Rule filled that gap by providing substantive protections nationwide and ensuring that transgender people could pursue safe shelter consistent with their gender identity without fear of discrimination.[8] Removing these protections would put already vulnerable individuals living in states without protections at an even greater risk of being left on the streets.

HUD can greatly improve these statistics and the lives of transgender people by partnering with HUD-sponsored shelters and Continuum of Care (“CC”) professionals to defer to individuals experiencing homelessness and their understanding of their own genders.

In the proposed rule, HUD asks for comments on whether there are “good faith” considerations that can be indicative of someone’s gender to determine eligibility for shelter in a single-sex facility. But in order to properly serve and respect the transgender community, HUD must allow transgender people to be in the shelter that corresponds to their gender rather than their sex assigned at birth (mistakenly referred to in the Proposed Rule as “biological sex”). Misgendering or otherwise referring to transgender people in a way that does not comport with their gender identity, such as assigning them to the wrong gender or deadnaming (using a transgender person’s birth name that does not accord with their gender identity) creates lasting harm.[9] Accordingly, transgender women should be placed in women’s shelters and transgender men should be placed in men’s shelters.[10]

Assigning someone to a shelter that does not comport with their gender is likely discrimination on the basis of sex.[11] While there is no bright rule that temporary HUD-sponsored shelters are subject to the Fair Housing Act (“FHA”), at least two federal courts have said shelters are “dwelling” units, raising the applicability of the FHA’s prohibition on sex discrimination.[12] In their analyses, the courts weighed length of time, occupants treating the shelter as a home, and whether occupants had another place to go. Indeed, in New York City, such action by a shelter would automatically be considered discrimination on the basis of gender.[13] This is for good reason—to place persons in shelters based on sex assigned at birth rather than gender identity necessarily treats cisgender people more favorably than transgender people, resulting in discrimination on the basis of sex.

Such discrimination is not only contrary to law, but it also presents a safety issue. In an analogous situation where transgender women were placed in jail facilities intended for men, 59% of those transgender women were sexually assaulted compared to only approximately 4% of cisgender men.[14] Other studies show similar results for shelter residents.[15] Thus, placing transgender women in men’s shelters is not only discrimination on the basis of sex, but it also places them in danger of becoming victims of sexual assault and abuse.

HUD, in the Proposed Rule, asserts that placing transgender women in women’s shelters, consistent with their gender identity, leads to violence against cisgender women. There is no factual data to support this claim, and thus HUD cannot offer any. In fact, as demonstrated by sound, peer-reviewed data, the opposite is true: placing transgender women in men’s shelters is dangerous and potentially deadly to transgender women in particular.[16] To put transgender persons in danger is wrong and has no proper justification.

HUD also should not allow HUD-sponsored shelters (“HUD shelters”) to consider any government-issued IDs to determine the gendered facility in which an individual should be housed, nor should it allow shelters to rely on unlawful sex-serotyping based on what physical characteristics are more indicative of “womanhood” or “manhood.” Requiring government-issued IDs in shelters harms transgender people because IDs are costly, not readily accessible with the correct names and gender markers, and easily lost or stolen while struggling with homelessness.[17]

2.      Problems with Reliance on Government ID Gender Markers.

HUD’s Proposed Rule would permit HUD shelters to decide a person’s gender based in part or entirely on a government ID. This is misguided for three reasons. First, many government-issued IDs do not account for people who do not fall neatly into the constructed binary of “male” or “female.”[18] The consideration of government-issued IDs thus presents a disservice to those who are non-binary or intersex. A federal court has ruled that the State Department should reconsider its decision to deny an intersex and non-binary person an accurate passport.[19] Courts have also indicated that there are rights to self-identity that may be actionable under federal law, including due process rights, equal protection, and first amendment rights.[20] Because government-issued IDs may not accurately reflect a person’s gender, HUD should not consider them to determine shelter placement and instead defer to a person’s self-attestation of their gender.

Secondly, many states require transgender people to have surgical or medical intervention in order to correct the gender marker on their IDs, which presents a significant hurdle.[21] Many transgender people cannot afford to surgically transition, especially if these procedures are not covered by medical insurance plans, and not every transgender person wants or needs medical intervention. Thus, requiring adherence to the gender marker on government-issued IDs for placement in a gendered shelter area disproportionately harms transgender people experiencing homelessness, economic insecurity, or lacking access to comprehensive medical insurance, and pressures transgender people to rely on surgical or medical intervention rather than their own gender self-determination and integrity.[22]

Third, while the Proposed Rule discriminates against transgender people, it will also impact cisgender people trying to survive the struggles of homelessness. By relying on physical characteristics, shelters might discriminate against masculine-presenting women or feminine-appearing men, another potential sex-based violation of anti-discrimination laws, and a violation of residents’ basic dignity.[23]

The Proposed Rule would also be contrary to the progress many states are making as they start to move away from male or female-gendered identification cards and begin to recognize and accommodate people who want non-binary ID designations.[24] Some states are allowing people to self-attest to their gender and are not requiring a note from a medical care provider, which make IDs more readily changed.[25] Therefore, even if the Proposed Rule is adopted, HUD shelters will not be able to rely on government IDs for the stated purpose when those IDs are increasingly moving towards self-attestation and non-binary designations, let alone outdated and potentially illegal gendered notions of who “looks like” a stereotypical man or woman that likely will not hold up to judicial scrutiny.[26] Accordingly, HUD should withdraw this Proposed Rule because changes in state ID laws will increasingly render it moot.

3.      HUD Has Not Considered the Proposed Rule’s Impact on Continuum of Care Professionals.

As for HUD’s proposition that CCs will be able to provide transfer recommendations to a non-discriminatory shelter for people who are denied admission or placement in single-sex facilities on the basis of gender identity, CCs should not be enlisted to take part in discrimination. HUD shelters should not be able to shirk their responsibility for non-discrimination by transferring the responsibility to provide appropriate shelter placements for transgender people to CCs, only to have transgender people face additional barriers, discrimination, and a possible lack of shelter because of the unavailability of non-discriminatory shelters. The Proposed Rule positions CCs to fail in their mission to place homeless individuals in shelters and sets up serious operational constraints because CCs may not be able to timely locate an alternative for a transgender person who has been denied shelter based on their gender.

The Proposed Rule currently presents numerous questions: Will CCs, with their limited resources, be forced to maintain lists of non-discriminatory shelters? How will states prevent sex discrimination when there is a separate, unfair process meant only to handle transfers from discriminatory shelters to non-discriminatory shelters for transgender residents? Lastly, how will CCs handle the huge influx of individuals who will need to turn to federally sponsored shelters when COVID-19 eviction moratoriums are lifted? These are serious operational considerations that HUD has not addressed in the Proposed Rule and that warrant exacting review, if not outright abandonment.

B.        New York City’s Transgender Rights Protections in Shelters Serve as a Model.

New York City has one of the largest homeless populations in the country, with approximately 54,000 people,[27] and a robust system to house all individuals and families in emergency shelter as a matter of right.[28]

The history of the shelter system was bleak. The New York City Department of Homeless Services (“NYC DHS”) previously did not allow transgender people to be housed consistent with their gender identity, nor did it allow same-sex couples or queer families to be housed together. Through organizing by shelter residents, New York City adopted significant reforms.

 1.      Jay Toole Aimed to Reform the Shelter System for LGBTQ People and Won.

HUD should look to Jay Toole as an inspirational figure for why HUD should respond to challenges facing the transgender and greater LGB community and listen to other transgender and gender non-conforming people who survived the shelter system. Toole was kicked out at the age of 13 for sporting a flat top, a classic butch haircut of the day, and became a homeless gender non-conforming person in the 1960s.

After decades of street homelessness, Toole ended up at an NYC DHS shelter and fundraised for supplies for LGBT people coming out of the jails, hosted queer movie nights, and ensured that TGNC residents had access to a host of resources they could utilize. Later on, Toole began to participate in forums at the New York City LGBT Center and helped found Queers for Economic Justice (“QEJ”) in 2002. QEJ worked at the intersection of sexual orientation and gender identity. Toole’s work at QEJ as the Director of the Shelter Project led to significant policy changes at NYC DHS, such as transgender people being housed according to their gender identity, and LGBT families not being separated, similar to the later Equal Access Rule.

 2.      New York City’s Shelter Protections for Transgender People.

 Due to Toole’s work, NYC DHS has allowed transgender, intersex, and non-binary homeless people to self-attest to their gender while entering the shelter system without relying on any government-issued ID since 2006.[29] The policy states that NYC DHS and its shelter staff must treat all LGBTQ people with dignity, and that intersex and transgender people can use the male or female side of shelters consistent with their gender identity or the gendered side where they feel the most safe and comfortable.[30] NYC DHS policy provides for individualized safety assessments to protect the safety of transgender and intersex people. Shelter staff must respect transgender and intersex clients at all times, including at intake and assessment, by using their preferred name and their gender. The policy also provides definitions of “transgender” and “intersex” to help shelters understand the transgender community and how best to respect and address the community.[31] NYC DHS’s policies also ensure transgender people have privacy, proper sleeping arrangements, respectful dress codes, restroom accessibility, methods for reporting incidents of discrimination and violence, access to transfers, gender affirming prosthetics, and that case workers and security guards will refer to them by their correct name and pronoun.[32] Lastly, current NYC DHS policy dictates that transgender people have the right to access gender confirming services and medical interventions and that internal computer systems must accurately reflect pregnancy status and legal name changes.[33]

Contrary to HUD’s Proposed Rule, NYC DHS’s policy makes clear that identity, self-integrity, and personal dignity are paramount. When placing or interacting with clients, NYC DHS staff are directed to disregard legal documents or physical appearances, including height, weight, or other primary or secondary sex characteristics that may be different from the client’s stated gender identity.[34] Whereas NYC DHS’s previous lack of policies led to the harassment of transgender people and invasive and inappropriate questioning,[35] its current policy states that staff will address individuals with the names, titles, pronouns and other terms appropriate to the client’s gender identity.[36] In terms of placement and dress code, the policy states that NYC DHS staff will work with their clients to find appropriate programmatic placements in program shelters and to meet their service needs. In showers and bathrooms, clients are to be directed to private showers for more privacy should they request them, but transgender and intersex clients are permitted to use the bathroom and shower facilities consistent with their gender identity.[37] The policy also directs staff to allow transgender individuals to wear clothing consistent with their gender identity.[38] The policy indicates that intake and assessment shelters shall undergo training to further understanding and respect for the transgender community.


The Proposed Rule will hurt transgender people seeking safe, welcoming shelters. We urge HUD to listen to a diverse array of shelter residents and transgender people, and to maintain truly non-discriminatory policies and programs. Rather than attempting to sanction discrimination against a marginalized group in the throes of the COVID-19 pandemic, HUD should maintain its Equal Access Rule and ensure its limited federal funds are used to support—and save—transgender lives. Accordingly, HUD should immediately withdraw the Proposed Rule.

Thank you for the opportunity to submit comments on the Proposed Rulemaking.

Civil Rights Committee
Zoey Chenitz, Chair
Prepared by Kyle S. Rapiñan

Lesbian, Gay, Bisexual, Transgender, and Queer Rights Committee
Danielle King and Geoffrey L. Wertime, Co-Chairs
Prepared by Eliza Chung, Transgender Rights Subcommittee



[1] See HUD, Equal Access in Accordance With an Individual’s Gender Identity in Community Planning and Development Programs Rule, 24 C.F.R. Part 5 (Sep. 21, 2016), available at (“Equal Access Rule”) (all websites last visited on Sept. 16, 2020).

[2] See Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th  Cir. 2007) (FHA applies to 49 transitional living shelters, at least in part); see also Woods v. Foster, 884 F. Supp. 1169 (N.D. Ill. 1995) (holding that a homeless shelter is a “dwelling” under the FHA).

[3] 2015 U.S. Transgender Survey, Nat’l Transgender Equality Center 1-302, 178,

[4] Id.

[5] Id. at 181-82.

[6] Id. at 15.

[7] See Nondiscrimination Laws, Movement Advancement Project,

[8] See Equal Access Rule, supra note 1.

[9] See 2015 U.S. Transgender Survey, supra note 3, at 5.

[10] Non-binary shelter residents should be allowed to be placed on either side as a non-binary person, whereas transgender men and women should be able to choose either side based on their own individual safety considerations.

[11] See Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020) (holding that the term “sex” in Title VII includes and protects transgender and gender non-conforming people); see also, Grimm v. Gloucester Cty. Sch. Bd., No. 19-1952, 2020 WL 5034430, at *21-24 (4th Cir. Aug. 26, 2020), as amended (Aug. 28, 2020) (holding Title IX and the Equal Protection Clause of the 14th Amendment protect transgender people and that school policy prohibiting transgender people from using bathrooms consistent with their gender identity was unlawful).

[12] See Community House, Inc., 490 F.3d at 1041 (9th Cir. 2007); see also Woods, 884 F. Supp. at 1173 (N.D. Ill. 1995).

[13] See Gender Identity/Gender Expression: Legal Enforcement Guidance, NYC Comm’n Hum. Rts. 6 (Feb. 15, 2019),

[14] See Valerie Jenness, et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault 30 (May 16, 2007),

[15] See 2015 U.S. Transgender Survey, supra note 3, at 180-82.

[16] See 2015 U.S. Transgender Survey, supra note 3, at 182 (study showed 49% of transgender respondents that had stayed at a shelter said they were verbally harassed, 19% physically attacked, 17% sexually assaulted, and 52% said they had one or more of the above experiences at a shelter).

[17] See 2015 U.S. Transgender Survey, supra note 3, at 84-89; see also Abby Aguirre, Trans-Forming Homeless Services: New Policy Aims to Protect Clients, City Limits (Feb. 13, 2006), (Jay Toole describing work to change DHS policy that previously required transgender people to have government-issued IDs to be placed with their gender).

[18] Identity Document Laws and Policies, Movement Advancement Project, (last visited Sept. 2, 2020) (indicating that as of August 25, 2020, at least 31 states do not allow their residents to have a non-binary identification on their driver’s license); see also Associated Press, Appeals Court Rules in Favor of Nonbinary Legal Designations, U.S. News (July 8, 2020), (indicating that Oregon, in 2017, was first state in U.S. to allow residents to identify as nonbinary on driver licenses and state identity cards).

[19] See Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020) (holding that federal government’s continued justifications for denying Zzyym a non-binary designation on their U.S. passport were arbitrary and capricious).

[20] F.V v. Barron, 286 F. Supp. 3d 1131, 1145 (D. Idaho 2018) (holding the State of Idaho violated the Equal Protection Clause by failing to provide an avenue for transgender people to amend the sex listed on their birth certificate); Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327, 333 (D.P.R. 2018) (holding that the Commonwealth of Puerto Rico had violated transgender persons’ decisional privacy and informational privacy by requiring them to disclose their transgender status and that such a forced disclosure is not justified by any legitimate government interest.)

[21] See Identity Document Laws and Policies, supra note 18 (indicating that at least 28 states and five territories have burdensome medical processes—or no processes—to change government issued IDs, compared to 18 states and District of Columbia that allow self-attestation of gender).

[22] See Flow Chart: Disproportionate Poverty, Sylvia Rivera L. Project, (showing how TGNC people are much more likely to be poor or homeless than the average person by explaining how various factors combine into an interlocking system that keeps many trans and gender non-conforming people in situations that are vulnerable and unequal, including inaccessible and inaccurate government issued IDs); see also Walker v. Azar, No. 20-CV-0283 (FB) (SMG) (E.D.N.Y. Aug. 17, 2020) (order granting plaintiff’s application for a stay and preliminary injunction to enjoin the dismantling of transgender protections within the rules enforcing § 1557 of the Affordable Care Act); Healthcare Laws and Policies, Movement Advancement Project, (indicating that 24 states and the District of Columbia have laws that prohibit transgender exclusions in health insurance services, compared to 29 states and 4 territories that do not have any law explicitly providing LGBT-inclusive insurance protections; 22 states have Medicaid policies that explicitly cover healthcare related to gender transition for transgender people compared to 18 states and 4 territories that have no policy and 10 states that ban their state Medicaid program from covering transgender health coverage and care).

[23] See Rich Schapiro, Lesbian Riled by Boot from Ladies Room, N.Y. Daily News (Jun. 30, 2007),

[24] See Ellie Silverman, Pennsylvania Allows Non-Binary Gender Designation on Driver Licenses, Philadelphia Inquirer (July 23, 2020),; see also Identity Document Laws and Policies, supra note 18.

[25] See Identity Document Laws and Policies, supra note 18.

[26] See Bostock, 140 S. Ct. at 1741 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”); see also United States House of Representatives Committee on Financial Services, Jun. 29, 2020, (“Given the potential contradictions between the language in the Bostock decision and the language in the regulation submitted to [Congress], we ask the Department of Housing and Urban Development to reconsider publishing this regulation for public comment before conducting additional legal analysis”).

[27] See NYC Department of Homeless Services, DHS Data Dashboard – Fiscal Year 2020 – QTR 3, NYC, .

[28] NYC Department of Homeless Services, History, NYC, (“Prior to the landmark Callahan v. Carey case in 1981, single adults were simply turned away once shelters were filled to capacity. However, as a result of the lawsuit, the shelter system rapidly expanded, bringing beds online to accommodate every person who needed one”); see also Callahan v. Carey, No. 79-42582 (Sup. Ct. N.Y. County, 1979) (1981 consent decree),

[29] Transgender, Non-binary and Intersex Clients Procedure No.: DHS-PB-2019-015, NYC DHS (July 15, 2019), [hereinafter TNBI Procedure]; see also Transgender/Intersex Clients Procedure No.: 06-1-31, NYC DHS (Jan. 31, 2006), [hereinafter 2006 Procedure] (later replaced by DHS 15-502 and DHS-PB-2019-015).

[30] See TNBI Procedure, supra note 29 at 11.

[31] Id. at 1; see also 47 RCNY § 2-01 (NYC Commission on Human Right’s definitions on gender identity, intersex, and cisgender).

[32] Compare TNBI Procedure, supra note 29, with 2006 Procedure, supra note 29.

[33] TNBI Procedure, supra note 29, at 27.

[34] TNBI Procedure, supra note 29, at 24-27.

[35] See Jay L. Toole, New York City Trans Oral History Project 52, 67 (Jun. 29, 2016),

[36] TNBI Procedure, supra note 29, at 24-27.

[37] Id.

[38] Id.