July 30, 2020 at 3:16 pm EDT | by Chris Johnson
Rep. Wexton leads congressional effort against HUD’s anti-trans rule
Rep. Jennifer Wexton (D-Va.) is leading a congressional effort against HUD’s anti-trans rule. (Washington Blade file photo by Michael Key)

Rep. Jennifer Wexton (D-Va.) is leading a group of congressional lawmakers in formal comments against a proposed Trump administration rule allowing homeless shelters to refuse to accept transgender people consistent with their gender identity.

The bicameral congressional letter in opposition to the anti-trans rule change proposed by the Department of Housing & Urban Development under Secretary Ben Carson has been signed by 122 House members and 23 senators.

“It is absolutely shameful that in the midst of a pandemic and with a record number of Americans unemployed, when access to safe housing is more important than ever, the administration is focused on attacking the basic rights of transgender Americans,” Wexton said Thursday in a Zoom call with reporters.

Formally made public July 24 in the Federal Register, the proposed rule allows homeless shelters with single-sex facilities to place transgender people consistent with sex assigned at birth, rather than gender identity.

The proposal downplays the idea such actions would be discriminatory by setting up a referral system: Single-sex homeless shelters can send transgender people to other shelters, for these single-sex shelters to house transgender people according to sex assigned at birth.

As pointed out by Katelyn Burns at Vox, the proposed rule has detailed language to aid homeless shelters in determining whether an individual is transgender, such as making assumptions based on ‘height’, ‘facial hair’ and whether or not they have ‘an Adam’s apple.’

Rep. Mike Quigley (D-Ill.) said on the conference call Carson years ago promised only delays in implementing an Obama-era rule against anti-transgender discrimination in homeless shelters, but then reversed himself by saying changes are coming, just being withheld, because members of Congress won’t like them.

“Secretary Carson’s words proved prophetic as under his and President Trump’s leadership, the administration moved to completely gut core housing discrimination protections, such as HUD’s disparate impacts and affirmative fair housing rules,” Quigley said. “That wasn’t enough. HUD has announced a new proposed rule that would enable shelters to discriminate against trans individuals based on shelter staff suspect an individual’s biological sex may be different from the way they self-identify.”

The proposed rule also disregards the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, which determined anti-transgender discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act of 1964. The rule has applications to all federal laws against sex discrimination, including the Fair Housing Act.

HUD justifies the legality of the proposed rule by asserting homeless shelters aren’t under the purview of the Fair Housing Act, although one legal expert said on the conference call that analysis is incorrect.

Sasha Buchert, senior attorney with Lambda Legal, said the proposed rule is “on very shaky legal ground” not just because of the Supreme Court decision, but also rulings from appellate courts, state and local measures against anti-trans discrimination and questions under the U.S. Constitution.

“If you spend five minutes going through the case law, courts apply a case-by-case analysis when deciding whether or not the Fair Housing Act applies to shelters,” Buchert said. “It’s a legal question as to whether they’re considered dwellings, and there are at least two circuit courts that have held that shelters are considered dwellings under the Fair Housing Act, and therefore subject to that, so their analysis is just wrong.”

The Trump administration has previously disregarded public comments against anti-transgender policy. HHS made final a rule under Section 1557 of the Affordable Care Act enabling health care providers and insurance companies to refuse service to transgender people despite more than 120,000 comments in opposition to the proposal.

Wexton, nonetheless, said public comments against HUD’s anti-trans rule are still important for other reasons.

“Public comment is always important because even if it’s ignored by the administration, it is something that can be pointed to in the lawsuit that will inevitably arise out of this rulemaking to not be allowed to go forward,” Wexton said. “It is important that the public be heard and make sure that people make their voices known that they object to this discriminatory rule.”

In terms of legislative actions against the proposed rule, Wexton cited legislation she sponsors called the Ensuring Equal Access to Shelter Act, which she said has passed the House Financial Services Committee, but has yet to come up for a floor vote.

Quigley said legislation that would defund the rule is also part of pending T-HUD appropriations legislation, but that hasn’t obtained a vote in the Senate, nor is it clear whether President Trump would sign it into law.

Rep. Mary Gay Scanlon (D-Pa.) said on the conference call the Equality Act — which has passed the House, but has been bottled up in the Senate — would also reaffirm discriminatory measures against transgender people in housing are illegal.

“Here we are, 430 days since the House passed the Equality Act, and this rule is just one more demonstration of why we need [Senate Majority Leader] Mitch McConnell to take it up and we need to push it through the Senate,” Scanlon said.

Publication of the proposed rule in the Federal Register officially started the clock for a 60-day comment period. Assuming the Trump administration sticks with the measure as proposed, it’s expected to be made final in the fall.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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