The Night Ministry Opposes Change to Shelter Equal Access Rule

On July 1, 2020, the U.S. Department of Housing and Urban Development (HUD) announced a rule that would modify the Equal Access Rule, stripping transgender people of fundamental protections that ensure the safety of anyone in need of HUD-funded programs.

The proposed rule would allow local shelter providers decision-making authority around a transgender individual's sex and gender, thereby determining who is eligible for access to single-sex or sex-segregated facilities. Shelter operators would only be required to use a good-faith effort to determine someone's gender, relying mostly on physical appearance.

By allowing federally-funded shelters to determine whether or not to appropriately house a transgender person, they are able to turn away individuals whose gender identity does not match the sex they were assigned at birth. This rule not only impacts transgender individuals, but allows shelters and housing placements to deny access to appropriate services for any person if their appearance is outside of gender norms. This proposed rule opens the door to further discrimination against LGBTQ+ people, and will undoubtedly exacerbate violence and homelessness among already vulnerable communities.

In its press release announcing the proposed modification, HUD stated that this would "better accommodate the religious beliefs of shelter providers" and would "empower shelter providers to set policies that line with their missions."

While Illinois has statewide protections in place that will prevent this rule from applying to Iocal programs, other states across the country will not be as fortunate.

The Night Ministry, which has provided shelter to young people of all genders for nearly 30 years, vehemently opposes this proposed rule, and supports protections put in place by the 2016 Equal Access Rule which "requires all HUD-funded housing services to be provided without discrimination based on sexual orientation or gender identity." The Equal Access Rule protects transgender people from discrimination in homeless shelters by ensuring they are able to access HUD-funded shelter consistent with their gender identity. Such protections are essential to ensure safe access to shelter for transgender people experiencing homelessness, survivors of violence, and those fleeing disasters.

It is absolutely vital that transgender and non-binary people have access to safe and supportive housing especially when our country is experiencing a pandemic, economic instability, and a racial justice crisis that has heightened disparities and inequities among underrepresented communities. The Night Ministry is committed to preserving the Equal Access Rule and protecting LGBTQ+ communities from further discrimination and increased risk of homelessness.

If you would like to comment on HUD's proposed modifications to the Equal Access Rule, you can go to housingsaveslives.org and file a comment online.The commenting period ends September 22.

Below you can read the comments filed by The Night Ministry opposing the modification to the Equal Access Rule.

The Night Ministry, a Chicago-based, HUD-funded shelter provider founded by diverse faith congregations, is strongly opposed to the U.S. Department of Housing and Urban Development's (HUD) proposed rule that would modify the Equal Access Rule.

The proposed rule would allow local shelter providers decision-making authority around a transgender individual's sex and gender, thereby determining who is eligible for access to single-sex or sex-segregated facilities. By allowing federally-funded shelters to determine whether or not to appropriately house a transgender person, they are able to turn away individuals whose gender identity does not match the sex they were assigned at birth. This rule will certainly harm transgender individuals, but gives organizations the power to deny access to shelter, housing, and appropriate services for any person if their appearance is outside of gender norms. This proposed rule opens the door to further discrimination against LGBTQ+ people and will undoubtedly exacerbate homelessness among already vulnerable communities.

The Night Ministry (TNM) supports the 2016 Equal Access Rule which protects transgender people from discrimination in homeless shelters by ensuring they are able to access HUD-funded shelter consistent with their gender identity. Such protections are essential to ensure safe access to shelter for transgender people experiencing homelessness, survivors of violence, and those fleeing disasters.

HUD's proposed rule is unnecessary.

TNM operates five shelter programs for youth and young adults experiencing homelessness, two of these shelter programs are HUD-funded.For nearly 30 years, TNM has safely housed young people of all genders in our sex-segregated facilities.

Many of the strategies that TNM has successfully utilized were included in HUD's 2015 guidance on shelter placements for transgender individuals.This current guidance, which is no longer available on HUD's website, includes asking potential clients the gender with which they identify and housing them accordingly, assessing all health and safety concerns (while giving serious consideration to the health and safety concerns of the transgender individual), offering private bathing facilities or facilities that utilize curtains to provide privacy, and -- when possible – provide private sleeping rooms.

HUD's proposed rule is harmful and creates unpredictability within local homeless service systems.

In Illinois, it is illegal to discriminate on the basis of gender identity in housing, employment, and public accommodation.Several states offer similar protections that extend to homeless shelter. Attorneys from the American Civil Liberties Union have stated that local protections will remain in place when the proposed rule goes into effect.However, in states where the proposed rule will be enforced, clients will not be able to rely on uniform eligibility requirements.In effect, there could be one set of eligibility rules at one shelter door, and a vastly different set of eligibility rules at another shelter door.

This unpredictability goes against everything that homeless service providers know about the importance of providing trauma-informed services.During a time when a homeless, trauma-impacted client feels like so much of their life is spiraling out of control, finding routine and predictability in the services offered by shelter providers lends a sense of stability and security and allows the client to understand what their day-to-day life will look like.If clients are unable to find services that meet their needs or too many barriers are put in place to access services, they will be forced either go without important services or move between communities and states to seek services that will best accommodate them.In the process, they will leave behind their families, friends, faith communities, and other support networks.Studies show that these types of supportive relationships are essential if someone is going to successfully exit homelessness.

HUD's proposed rule goes against HUD's stated priorities.

In the FY2019 COC Program Notice of Funding Availability, HUD states that its program supports the greater goal of ending homelessness in the following ways (emphasis added):

"Ending homelessness for all persons.To end homelessness, CoCs should identify, engage, and effectively serve all persons experiencing homelessness. CoCs should measure their performance based on local data that consider the challenges faced by all subpopulations experiencing homelessness in the geographic area (e.g., veterans, youth, families, or those experiencing chronic homelessness)."

The proposed rule would place significant barriers for CoCs to effectively serve all persons experiencing homelessness, especially in rural communities or communities where there are fewer homeless service organizations.If the proposed rule goes into effect, will HUD increase funding so that CoCs which find there are service gaps for transgender and gender non-conforming individuals can create new, affirming shelter programs?

"Creating a systemic response to homelessness. CoCs should be using system performance measures such as the average length of homeless episodes, rates of return to homelessness, and rates of exit to permanent housing destinations to determine how effectively they are serving people experiencing homelessness. Additionally, CoCs should use their Coordinated Entry process to promote participant choice, coordinate homeless assistance and mainstream housing and services to ensure people experiencing homelessness receive assistance quickly, and make homelessness assistance open, inclusive, and transparent."

HUD stresses the importance of using system performance measures to assure that a community's homeless services system operates effectively.However, in creating this rule, HUD did not rely on system performance measures.In fact, HUD states it is "not aware of data suggesting that transgender individuals pose an inherent risk to biological women," and strictly relied on "anecdotal evidence" from a small number of communities, while ignoring anecdotal evidence from thousands of HUD-funded providers across the country that have provided these services safely and without the types of issues this proposed rule describes since the introduction of the 2016 Equal Access Rule.

The proposed rule will almost certainly increase the length of time that transgender and gender non-conforming individuals experience homelessness as the provider attempts to identify safe alternative shelter programs.This could impact the community's annual application for HUD funding and may result in cuts that could impact all HUD-funded providers in that community.

This proposed rule de-emphasizes participant choice, especially if the participant identifies or appears to be transgender or gender non-conforming, and does not further HUD's goal of an inclusive system.The proposed rule would permit homeless providers to exclude transgender and gender non-conforming individuals. While the rule states that providers must assist individuals who are turned away in finding appropriate services, HUD does not require that CoCsprovide appropriate services for individuals who shelter providers refuse to accommodate as a result of this rule.

"Using an Evidence-Based Approach. CoCs should prioritize projects that employ strong use of data and evidence, including the cost-effectiveness and impact of homelessness programs on positive housing outcomes, recovery, self-sufficiency, and reducing homelessness. Examples of measures that CoCs may use to evaluate projects include, but are not limited to: rates of positive housing outcomes, such as reduced length of time homeless and reduced rates of return to homelessness; improvements in employment and income; and improvements in overall well-being, such as improvements in mental health, physical health, connections to family, and safety."

As stated previously, the proposed rule would increase the length of time homeless, significantly impact the well-being of a significant portion of individuals experiencing homelessness, disconnect them from family, and decrease their feelings of safety.

In conclusion, it is absolutely vital that transgender people have access to safe and supportive housing.The Night Ministry is committed to preserving the current Equal Access Rule and protecting LGBTQ+ communities from further discrimination and increased risk of homelessness.Much work has been done, and continues to be done, to make sure that HUD-funded shelters are safe spaces for everyone who requires their services; we must not take steps backwards.