The Trump administration has appeared to have given up a proposed regulation that would have allowed taxpayer-funded homeless shelters to refuse to place transgender people consistent with their gender identity, although another measure permitting HHS federal grantees to discriminate against LGBTQ people may be imminent.
With the Trump administration coming to an end less than one month away, the anti-trans rule under the Department of Housing & Urban Development hasn’t yet been submitted to the White House Office of Management & Budget. The Office of Information & Regulatory Affairs at OMB, which manages the rule-making process for federal agencies, has no listing for its rule under the “regulatory review” portion of the website.
Additionally, the rule is scheduled to become final April 2021. That would be after the swearing-in of President-elect Joe Biden, whose administration would presumably reject the proposed regulation.
By contrast, the rule allowing recipients of grants from the Department of Health & Human Services to discriminate against LGBTQ people has been received by OMB and under review since May 2020. Further, the December 9 issue of the Trump administration’s regulatory agenda indicates OMB intends to make the rule final during the transition period before Trump’s exit.
A HUD official, speaking to the Washington Blade on anonymity, said in the normal schedule for rule regulations and filings the anti-trans homeless shelter rule “will not be finalized before Jan. 20 and isn’t scheduled for finalization until sometime in April.”
“Given the incoming administration, it would seem likely that HUD will take some form of action to either not finalize the rule or withdraw it from consideration soon after their arrival,” the official said.
It’s unclear whether or not a formal decision was made within HUD to let the rule die with the end of the Trump administration. The HUD official said “basically it wasn’t prioritized and therefore it won’t become a final rule because of scheduling.”
The HUD rule, formally proposed in July 2020 after years of mixed signals from Secretary of Housing & Urban Development Ben Carson under questioning from Reps. Mike Quigley (D-Ill.) and Jennifer Wexton (D-Va.), would allow federally funded single-sex homeless shelters to turn away transgender people seeking emergency housing. The sole basis would be the staff perception on whether or not that transgender person appears sufficiently masculine or feminine to be housed in that facility.
Any number of reasons could have contributed to HUD not prioritizing the rule, including delay due to the volume of comments, public backlash over the anti-trans regulation or simply incompetence in the Trump administration.
It could also be the result of legal uncertainty about the proposed rule in the wake of the U.S. Supreme Court ruling earlier this year in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, therefore illegal under Title VII of the Civil Rights Act of 1964. The underlying reasoning behind the decision applies to all laws banning sex discrimination, essentially making anti-LGBTQ illegal in employment, housing, credit, health care, education and jury service.
With the HUD rule, the Trump administration appeared to propose a workaround for Bostock in the case of sex-segregated homeless shelters, asserting they couldn’t turn away transgender people entirely, but could refuse to place them consistent with their gender identity.
“For example, under the proposed rule, if a single-sex facility permissibly provides accommodation for women, and its policy is to serve only biological women, without regard to gender identity, it may decline to accommodate a person who identifies as female but who is a biological male,” the proposed rule says. “Conversely, the same shelter may not, on the basis of sex, decline to accommodate a person who identifies as male but who is a biological female.”
It’s possible, however, Trump administration lawyers concluded that rationale wasn’t enough to get around Bostock and convinced HUD to abandon the regulation on the basis that it would make the department vulnerable to lawsuits.