Several years ago, HUD published its so-called “Equal Access Rule,” restricting the ability of owners and managers of HUD-assisted and -insured housing (including housing funded by HUD’s Office of Community Planning and Development (“CPD”)) to ask prospective renters about their sexual orientation, gender identity or marital status. 77 Fed. Reg. 5662 (Feb. 3, 2012). Subsequently, HUD determined that the original Equal Access Rule did not sufficiently address the needs of transgender and gender-nonconforming individuals in shelters and other emergency housing situations. According to HUD, many shelters receiving funds from CPD are unable or unwilling to provide housing to transgender persons, or do so in ways that are oppressive and burdensome, including in some cases asking for physical proof of their gender.

 

To address these concerns, HUD last week published its final version of its newest equal access rule—we’ll call it “Equal Access Rule II” or “EAR2,” for short—that establishes protections for persons participating in CPD programs, regardless of those persons’ gender identity. 24 CFR 5.100 and 5.106, published at 81 Fed. Reg. 64763 (Sept. 21, 2016). Essentially, EAR2 says that CPD recipients must adopt policies that assure that persons receive equal access to their programs and facilities according to the person’s gender identity, and forbids recipients from asking “intrusive questions” or requesting “anatomical information or documentary, physical or medical evidence of the individual’s gender identity.” Id, §5.106(b)(1) and (3). In other words, CPD recipients are not allowed to question an individual’s self-declared gender identity, and must provide accommodations reflecting that gender identity.

 

In the preamble to the final rule, HUD addressed a number of concerns raised in comments, including the possibility that current residents may object to the presence of transgender persons in a shelter, leading to harassment of the transgender person and/or a decision by “biological women” (HUD’s term) to leave a shelter, rather than live in a shelter that also houses transgender women. HUD’s response is that CPD recipients should adopt policies to assure safe housing for all residents, including transgender persons, and advised that they should attempt to educate other residents and adopt policies that minimize such concerns. HUD warns that if necessary, expulsion of residents or staff who engage in harassment may be considered.

 

As noted, while the original Equal Access Rule covered CPD-funded programs, EAR2 takes pains to apply these protections to all recipients of CPD assistance, including HOME funds, CDBG grants, HOPWA assistance and other programs, and to make clear that those duties extend to “recipients and subrecipients, as well as to owners, operators and managers of shelters and other buildings, and facilities and providers of services funded in whole or in part by any CPD program.” 24 CFR § 5.106(a), 81 Fed. Reg. at 64782. That’s a pretty broad universe of CPD recipients and goes far beyond the limited universe of shelters and other emergency housing providers on which HUD originally focused.

 

Both the Equal Access Rule and EAR2 extend protections to persons on the basis of characteristics that are not expressly included in the list of protected classes covered by the FHAct. In the preamble to EAR2, HUD justified extending protections related to gender identity on its broad authority to implement housing programs for the good of all Americans. Id. at 64769. Moreover, it argues that the FHAct’s protections based on “sex” should be interpreted as extending to gender identity, citing HUD’s own 2010 memorandum on the subject and similar conclusions from the Equal Employment Opportunity Commission. Succinctly, HUD states that “discrimination based on gender identity is sex discrimination.” Id. at 64770. At least some courts have been wary of reading the FHAct’s sex discrimination prohibition as broadly as HUD claims, and it will be interesting to see how the courts respond if complaints are filed against CPD recipients based on EAR2’s requirements.