National Council of Jewish Women Issues Public Comment on HUD Proposed Rule

WASHINGTON, Nov. 2 -- Jody Rabhan, chief policy officer of the National Council of Jewish Women, has issued a public comment on the Department of Housing and Urban Development proposed rule entitled "Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs". The comment was written on Sept. 22, 2020, and posted on Oct. 28, 2020:

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The National Council of Jewish Women ("NCJW") is pleased to provide comments in response to Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, a proposed rule published by the Department of Housing and Urban Development ("HUD") in the Federal Register on July 24, 2020 at 85 Fed. Reg. 44811 ("Proposed Rule").

Founded in 1893, NCJW is the oldest Jewish women's volunteer organization in the United States. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individual rights and freedoms. Our over 90,000 grassroots advocates carry out the organization's long tradition of progressive action through a powerful combination of community organizing, education, direct service, and advocacy. With 60 sections and action teams across the country as well as a strong State Policy Advocacy network in 16 states, NCJW works on local, state, and federal issues.

Our organizational principles state that equal rights and equal opportunities for all people must be guaranteed and that all forms of discrimination must be eliminated. NCJW champions the enactment, enforcement, and preservation of laws and regulations that protect civil rights and individual liberties for all -- especially for the most marginalized in our society who face structural barriers to exercising their human rights. By encouraging discrimination in housing, HUD takes steps that are directly contrary to these principles.

For the reasons detailed below, we ask HUD to withdraw the Proposed Rule and leave current regulations unchanged. The Proposed Rule, if finalized, would egregiously remove protections and deny access to much-needed housing programs for transgender individuals, violating their civil rights and creating barriers for the most vulnerable among us.

As an organization and community member, NCJW works for fair housing laws, policies, and programs that promote equal access to healthy, safe, affordable, quality shelter and nourishment. Our Jewish values teach us to respect the dignity and character of all people and, as such, we aim to create a world where everyone -- regardless of race, class, gender, sexuality, ability, gender identity, or immigration status -- is ensured access to shelter should desperate circumstances arise, regardless of what gender assignments shelters attribute to transgender individuals. Accordingly, NCJW is committed to ending bullying and discrimination against LGBTQ citizens, opposing attempts to use "religious liberty" laws as a smokescreen for discrimination against LGBTQ individuals, and supporting their constitutional rights to be treated equally without harassment.

NCJW believes the Proposed Rule violates the civil rights of transgender individuals, jeopardizes the lives and safety of people seeking shelter from homelessness, and would embolden compounding levels of discrimination against transgender individuals.

As such, NCJW strongly believes that HUD should not finalize the Proposed Rule.

I. NCJW, and Communities of Faith in General, Believe that All People Deserve Equal Access to Housing.

HUD asserts that the Equal Access Rule's "prescriptive approach to admission and accommodation on the basis of gender identity raises concerns about burdens on faith-based shelter providers."/1

However, by citing "religious liberty" as a justification for rescinding the Equal Access Rule's protections, the Proposed Rule places the interests of taxpayer-funded entities -- some of which receive millions of dollars each year -- ahead of the needs and rights of those seeking critical services. Faith-based organizations should never be permitted to accept government funds and then place religious litmus tests on who they hire, who they serve, or which services they provide with those funds.

As evidenced by the Proposed Rule, the Trump administration's continued manipulation of "religious liberty" has one overarching theme: a push to make policy and to interpret the law based on a narrow understanding of evangelical Christianity. This view leaves no room for minority religions or atheists and completely disregards the separation of religion and state. The administration threatens the religious liberty of all people when it enacts policy to align with one interpretation of one religion, and when it allows employers, service providers, and government officials to use their individual beliefs to thwart our nation's civil rights laws.

In reality, a common thread running through different faiths is that all strive for social justice and equal rights, including equal access to housing. People of faith believe in the dignity of all -- and that means all.

As each of us is made in the image of the divine -- b'tselem Elohim (Genesis 1:26) -- every single person's health is paramount and unassailable. Homeless shelters are vital to protecting the health and safety of the transgender community. Transgender individuals are highly vulnerable to abuse and exploitation when homeless. To combat this injustice, every human being deserves fair treatment and respect when accessing housing, free from political interference or economic coercion, and regardless of gender identity.

As part of our faith-based mission of tzedek (justice) for all, NCJW is dedicated to lifting up those disadvantaged economically, those with limited access to services, and those who face structural barriers to exercising their human rights. Our founder Hannah G. Solomon asserted, "We must add our voices to those who cry out that there is a standard below which we will not allow human beings to live, and that standard is not at the freezing or starving point." Since she spoke those words, NCJW has championed policies that improve the lives of marginalized and vulnerable communities including women, children, LGBTQ individuals, individuals with disabilities, and people of color. It is profoundly unjust to even propose reducing housing options for individuals based on their gender identity.

In sum, housing is a human right, and this comment reflects NCJW's commitment to ensuring every person is able to secure safe housing and nourishment.

II. The Proposed Rule Will Harm Transgender Individuals Seeking Shelter.

In accordance with HUD's mission to "build inclusive and sustainable communities free from discrimination," the programs designed and administered by the Department must provide access to safe and reliable housing for all those in need. Turning this principle on its head, HUD has instead created a Proposed Rule that would allow women's shelters to deny access to transgender women simply because of who they are. Access to safe housing is the first step in helping people secure healthy lives and to thrive. To deny this most basic of human rights based on transgender identity, a form of sex discrimination, strips transgender people of their very humanity.

Shelters are often a person's best access-point to programs that provide safe, individual housing, a critical need during a global pandemic that endangers anyone who is forced to share living spaces with others, whether outdoors or in a shelter. The idea of moving forward with this rulemaking during a global pandemic when shelter is critical is appalling and shows a callousness toward human life. It is deeply perplexing that agency resources would be used at this time to engage in a rulemaking that would put more people at risk of violence and COVID-19. Indeed, consistent with the direction of Acting OMB Director Vought in his recent memo to heads of departments and agencies, Departments should "prioritize all resources to slow the transmission of COVID-19."/2

This Proposed Rule does the opposite.

Transgender people are among the most vulnerable to contracting and becoming seriously ill from COVID19 and will be most impacted by this rule change. According to the 2015 US Transgender Survey, nearly one-third of transgender and gender non-binary people experience homelessness at some point in their lives; 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 lives. In the midst of this worldwide health crisis and in an age of rampant transphobia, it is of the utmost importance transgender people are ensured equal access to housing.

A. The Proposed Rule Would Endanger Transgender Individuals and Public Safety.

Our Jewish tradition tells us to embrace the inherit dignity and value of all human beings. Stripping protections for transgender people who are seeking emergency shelter is dangerous and will lead to higher rates of economic insecurity and violence for transgender people. Unfortunately, transgender people are highly vulnerable to physical, sexual, and mental abuse. A staggering 48 percent of transgender individuals who have experienced forms of domestic violence have also experienced homelessness./3

Since our inception, NCJW has worked for social justice for women and their families. Our earliest advocacy efforts supported minimum wage laws and protection for women and girls in factories. Since then, NCJW helped draft and pass the Violence Against Women Act of 1994 ("VAWA"), the first federal law addressing domestic violence, sexual assault, and other kinds of intimate partner violence. NCJW also serves on the steering committee of the National Task Force to End Sexual and Domestic Violence ("NTF"), where we have worked with partners to pass subsequent VAWA reauthorizations and continue to address critical needs, such as housing, as we work to end violence against women.

Contrary to the Proposed Rule's assertions, protecting transgender people's access to gender-specific facilities is, in fact, beneficial to public safety and does not endanger the safety or privacy of others. In 2016, NCJW joined over 300 domestic violence and sexual violence organizations across the country in signing a National Consensus Statement strongly supporting transgender-inclusive policies./4

We stand with our partners in favoring laws and policies that protect transgender people from discrimination, including in accessing facilities that match the gender they live every day, and in affirming that transgender women victims being served alongside other women is appropriate and not a safety issue.

What's more, on July 9, 2019, the NTF wrote to HUD to "strongly oppose" rolling back the Equal Access Rule's protections for transgender shelter-seekers. Similar nondiscrimination protections have been in place for years in over 20 states and over 300 localities and have helped increase fairness and opportunity for vulnerable people, and research shows these protections have not produced any increase in public safety issues.

While housing transgender people according to their gender identity does not pose a safety issue to others, failing to do so puts transgender people in danger. The 2015 US Transgender Survey reported that over half of transgender survey respondents who stayed in a shelter in the past year were verbally harassed, physical attacked, and/or sexually assaulted because of their gender identity.

Domestic violence is a primary cause of homelessness for women and children in the United States./5

Survivors of domestic violence often must flee their homes to escape life-threatening violence. Over 90 percent of homeless women report having experienced domestic abuse or sexual violence in their lives, while over 50 percent of homeless women report that domestic violence was the immediate cause of their homelessness./6

Access to housing is absolutely critical for survivors, as lack of safe and affordable housing options is regularly reported as a primary barrier to escaping abuse./7

The harmful effects of housing instability are compounded for women of color, as Native American women and women of color more generally face both increased barriers to housing and disproportionate rates of violence./8

Homelessness can also be a precursor to additional violence, because a survivor is at the greatest risk of violence when separating from an abusive partner./9

Securing safe, affordable housing is a crucial step on the pathway to a survivor's long-term security.

HUD has repeatedly recognized housing discrimination against domestic violence survivors as a significant fair housing issue,/10 as women account for over 80 percent of domestic violence survivors./11

Housing discrimination against domestic violence survivors also intersects with other protected classes. The rate of violence against women with disabilities, for example, is three times higher than the rate of violence against women without disabilities./12

Additionally, LGBTQ individuals experience high rates of domestic violence, while 71 percent of survivors reported that they were denied shelter because of barriers related to gender identity./13

Transphobia, as well as the intersections of race, poverty, or ability status, exacerbate LGBTQ survivors' experience of intimate partner violence. The National Transgender Discrimination Survey found that transgender people experience poverty at twice the national rates and that transgender people of color experience poverty at four times the national rates. Additionally, 29 percent of respondents reported harassment by police officers and 19 percent reported being refused medical care because of their transgender or gender nonconforming identity. These structural inequities make LGBTQ and HIV affected communities more vulnerable to experiencing intimate partner violence as they often must rely on their intimate partner for housing, financial support, and other resources. Leaving a violent situation requires access to resources which the Proposed Rule needlessly denies to transgender individuals.

B. The Proposed Rule Would Have Serious Negative Implications for the Health of Transgender Individuals.

NCJW has long worked to secure quality, comprehensive, confidential, appropriate, nondiscriminatory mental and physical health care coverage and services that are affordable and accessible for all. Our Jewish values teach us that we have an obligation to care for our bodies and to ensure that all others can do the same. Once again, the Proposed Rule ensures the opposite, arbitrarily cutting transgender individuals off from resources and programs that are vital to their health and safety.

For transgender people, increasing barriers to housing is especially harmful during this public health crisis.

Over 300,000 of the nearly 2 million transgender individuals in the US have one or more of the following chronic conditions which are fatally vulnerable to COVID-19: diabetes, asthma, heart disease and HIV./14

Homelessness among transgender people often leads to health complications due to unmonitored hormone and silicone injections obtained from street suppliers. Studies have also shown that homeless transgender individuals are highly susceptible to drug and alcohol abuse. Denying safe housing to the community would only make the situation worse. Already, 19 percent of transgender individuals have reported being denied access to housing and 11 percent have reported being evicted due to their gender-nonconformity./15

Giving shelter providers the right to legally discriminate would endanger the transgender community and result in major negative health implications.

Experiences in homelessness among transgender individuals is correlated with trauma and increased HIV risk. Already, the rate of HIV infection is higher among the homeless. What's more, rates of HIV infection among transgender individuals are 2.64 percent, four times higher than the general population/16 Transgender individuals who have experienced homelessness have a shockingly high 7.12 percent HIV infection rate. Many homelessness transgender individuals take engage in sex work to provide income and shelter, further increasing their risk of HIV infection.

Furthermore, homelessness is associated with psychological trauma as well. Those who are homeless are more at risk of anxiety, depression, and suicide. Studies have shown that transgender individuals are six to eight times more susceptible to experiencing depression than the general population. Moreover, there is a staggering gap between the transgender community and the general population in regards to reported attempted suicide. Studies show that 41 percent of transgender people have attempted suicide./17

In contrast, only 1.6 percent of the general population have attempted suicide. 69 percent of transgender individuals who attempted suicide were reported homeless.

Fair housing is obviously a life or death issue for the transgender community. Granting shelters authority to discriminate and deny access to housing for transgender individuals would only create severe negative health implications for the community at large. A body of research demonstrates that experiences of discrimination, such as being turned away from a shelter, have measurable short- and long-term effects on both physical and mental health, which can in turn effect morbidity and mortality, with economic and noneconomic costs for individuals, families, the health care system, and the economy. Should shelters receive the power to discriminate, the health risks detailed above would only increase and become more prevalent as homeless rates rise. HUD should be doing everything they can to scale up housing and homelessness services so they can be available to everyone who needs them, not pushing forward with policies that will make it harder to access housing.

III. The Proposed Rule Fails to Consider the Costs of Rescinding Key Portions of the Equal Access Rule.

The Administrative Procedure Act and applicable Executive Orders and OMB guidance require agencies to consider all possible costs and benefits of regulatory action. When rescinding a prior rule, agencies must explain why their analysis of costs and benefits has changed. Rescinding key portions of the HUD Equal Access Rule could generate many costs for shelter-seekers, covered entities, local communities, and society as a whole.

The Equal Access Rule's protections against discrimination are critical to ensure safe access to shelter for transgender people experiencing homelessness, survivors of violence, and fleeing disasters. Before these nondiscrimination protections were put in place, a study by the Center for American Progress and the Equal Rights Center found that only 30 percent of shelters across four states would appropriately house trans women with other women, and one in five shelters would turn them away outright.

The Proposed Rule is a giant step backward in the quest for adequate housing for all. By repealing the 2012 Equal Access Rule and the 2016 amendments protecting transgender individuals, the Proposed Rule improperly encourages discrimination against people that lawfully exercise their rights or that present in a way that some may oppose and thereby violates the Constitution and the Civil Rights Act. Although the Constitution, through the Fifth and Fourteenth Amendments, guarantees equal protection for all, the Proposed Rule would enable government-subsidized discrimination by allowing denial of housing to particular groups of people.

The Proposed Rule will likely lead to transgender people being turned away from, and in some cases simply giving up on even seeking, emergency shelter, and instead sleeping on the street or engaging in survival sex or survival crimes. This will also likely increase the time it takes for these individuals to be connected to stable housing. While HUD might argue that some communities never have enough beds for everyone, and beds unavailable to transgender people will be filled by others, this is not always true, and the rule may cause a net decrease in access to shelter. HUD has no evidence that non-transgender individuals experiencing homeless are actually suffering decreased access or other harms because of the current rule that will lead to offsetting savings from the Proposed Rule. In addition, transgender shelter-seekers are unusually vulnerable on the street due to the high rates of violence and other forms of trauma that they face, so a night on the street incurs a higher societal cost, on average, for a transgender person than a non-transgender person.

Under applicable Executive Orders and OMB guidance, agencies must also consider such intangible costs. Courts have repeatedly recognize that transgender people's right to define and express their identity, to make personal and medical decisions regarding social transition, to privacy regarding their transgender status and details of their transition, and to equal dignity and treatment are protected by the Constitution. This proposal would erode respect for those fundamental rights and freedoms.

IV. The Proposed Rules Is Inconsistent with the US Supreme Court's Decision in Bostock v. Clayton County.

On June 15, 2020, a landmark Supreme Court decision forbade employment discrimination against the LGBTQ community. In the 6-3 decision, the Court in Bostock v. Clayton County ruled LGBTQ individuals are protected by way of Title VII of the Civil Rights Act, which prohibited employment discrimination based on "[an employee's] race, color, religion, sex, or national origin"./18

In the majority opinion, Justice Neil Gorsuch affirmed that "[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."/19

Therefore, regardless of how anyone defines "sex," anti-LGBTQ discrimination is still discrimination.

Because of the Bostock decision, we urge that HUD's proposed rule must be reconsidered and withdrawn for three reasons. Emergency shelters fall under the Fair Housing Act's prohibition on sex discrimination.

According to the courts, this includes gender identity and sexual orientation. Denying transgender people shelters is illegal sex discrimination. In addition, because of Bostock, the Equal Protection Clause of the US Constitution forbids shelters and Continuum of Care programs from discriminating against

transgender people. Finally, HUD fails to determine the difference between the rules based on "biological sex" and the prohibited discrimination based on gender identity. The Bostock decision clearly states that sex discrimination includes gender identity and, therefore, would ultimately cause confusion.

V. Conclusion

Thank you for the opportunity to provide comments on the Proposed Rule for Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs. We trust that these comments, along with the many others we expect the Department will receive, will demonstrate how damaging and unjust the Proposed Rule would be to the transgender community and to our wider community as a whole.

We believe the Department has the duty not to finalize this damaging rule and to recognize once more that full access to safe shelter should be available to all.

Please do not hesitate to contact Shannon Russell, Legislative Counsel, at [email protected] to provide further information.

Respectfully submitted,

Jody Rabhan

Chief Policy Officer

National Council of Jewish Women

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Footnotes:

1/ 85 Fed. Reg. 44814.

2/ Memorandum for the Heads of Departments and Agencies from Russell T. Vought, Acting Director, Office of Management and Budget, Federal Agency Operational Alignment to Slow the Spread of Coronavirus COVID-19 (Mar. 17, 2020), https://www.whitehouse.gov/wpcontent/ uploads/2020/03/M-20-16.pdf.

3/ Grant JM, Mottet LA, Tanis J, Harrison J, Herman JL, and Keisling M. 2011. Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force. Accessed May 1st, 2014

4/ National Consensus Statement of Anti-Sexual Assault and Domestic Violence Organizations in Support of Full and Equal Access for the Transgender Community (2018), http://www.4vawa.org/ntf-action-alerts-and-news/2018/4/12/national-consensus-statement-of-anti-sexualassaultand-domestic-violence-organizations-in-support-of-full-and-equal-access-for-the-transgender-community.

5/ See ACLU Women's Rights Project, Domestic Violence and Homelessness (2006), http://www.aclu.org/pdfs/dvhomelessness032106.pdf; see also U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America's Cities: A 25-City Survey (Dec. 2014), https://www2.cortland.edu/dotAsset/655b9350-995e-4aae-acd3-298325093c34.pdf.

6/ Monica McLaughlin & Debbie Fox, National Network to End Domestic Violence, Housing Needs of Victims of Domestic Violence, Sexual Assault, Dating Violence, and Stalking (2019), https://nlihc.org/sites/default/files/AG-2019/06-02_Housing-Needs-Domestic-Violence.pdf.

7/ See Charlene K. Baker et al., Domestic violence, housing instability, and homelessness: A review of housing policies and program practices for meeting the needs of survivors, 15 Aggression & Violent Behavior 430, 430-39 (2010), https://b.3cdn.net/naeh/416990124d53c2f67d_72m6b5uib.pdf.

8/ See McLaughlin & Fox, supra note 2, at 1; see also Carolyn M. West & Kalimah Johnson, National Online Resource Ctr. on Violence Against Women, Sexual Violence in the Lives of African American Women (Mar. 2013), https://vawnet.org/sites/default/files/materials/files/201609/AR_SVAAWomenRevised.pdf; Smith, S.G., et al., National Intimate Partner and Sexual Violence Survey (NISVS): 2010-2012 state report (Apr. 2017), https://www.cdc.gov/violenceprevention/pdf/NISVS-StateReportBook.pdf.

9/ See id. at 431.

10/ See, e.g., U.S. Dep't of Hous. & Urban Dev., Assessing Claims of Housing Discrimination against Victims of Domestic Violence under the Fair Housing Act (FHAct) and the Violence Against Women Act (VAWA) (Feb. 9, 2011), https://www.hud.gov/sites/documents/FHEODOMESTICVIOLGUIDENG.PDF.

11/ U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics Crime Data Brief: Intimate Partner Violence, 1993-2001 (Feb. 2003).

12/ American Civil Liberties Union et al., Domestic Violence & Sexual Assault in the United States: A Human Rights Based Approach & Practice Guide (Aug. 2014), https://www.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/dv_sa_hr_guide_reduce.pdf.

13/ National Coalition of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Intimate Partner Violence in 2015 (2016), http://avp.org/wp-content/uploads/2017/04/2015_ncavp_lgbtqipvreport.pdf.

14/ Williams Institute, Vulnerabilities to COVID-19 Among Transgender Adults in the U.S. (2020), https://williamsinstitute.law.ucla.edu/publications/transgender-covid-19-risk / (last visited May 12, 2020).

15/ Id.

16/ Id.

17/ Grant JM, Mottet LA, Tanis J, Harrison J, Herman JL, and Keisling M. 2011. Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force. Accessed May 1st, 2014.

18/ Civil Rights Act of 1964 Sec. 7, 42 U.S.C. Sec. 2000e et seq (1964).

19/ Bostock v. Clayton Cty., Georgia, 2020 W.L. 3146686 (Supreme Court 2020).

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=HUD-2020-0047-0001

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