Stanley Carlson-Thies

On January 19, 2016, IRFA and other religious organizations filed a comment on proposed regulations from the US Department of Housing and Urban Development on ensuring equal access without regard to gender identity in certain emergency shelters and other community planning and development programs. The comment affirms everyone’s right to safe housing and shelter but points out that the draft regulations are at odds with the Fair Housing Act and would undermine, rather than advance, a respectful and safe environment for everyone.

The proposed regulations were published on Nov. 20, 2015. The comment was drafted by the US Conference of Catholic Bishops and joined by IRFA, National Association of Evangelicals, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Family Research Council, Christian Legal Society, Christian Medical Association, Liberty Institute, National Catholic Bioethics Center, and the National Association of Catholic Nurses.

The draft regulations are especially concerned to ensure equal access without regard to gender identity in emergency shelters with shared sleeping quarters or shared bathing facilities, and in other facilities, services, and programs supported by federal community development funds. The draft HUD rules would permit exceptions to the requirement of equal access to shared space for health and safety reasons, but only on a case-by-case basis and only when an alternative is requested by the transgender person, not by others in the shared facility.

The Fair Housing Act—the fundamental national rule for housing—does not prohibit discrimination on the basis of gender identity. Moreover, it specifically does not prohibit sex segregation by emergency shelters (and some other facilities not considered dwellings). So the proposed regulations lack congressional authorization. Furthermore, by mandating equal access to shared bathing and sleeping facilities unless an alternative is requested by the transgender person, the draft rules require the operator of the shelter to ignore the possibility that the safety or privacy of others in the shared facility are being endangered. The proposed regulations fail to give other services recipients within homeless shelters a voice or channel through which to report breeches of safety or feelings of discomfort. The mandated equal access also simply ignores the religious freedom of religious beneficiaries or shelter operators who have religious convictions about gender and about the sharing of facilities by people of opposite sex who are not married to each other. The HUD proposal assumes that fair treatment requires affirmation. Not every shelter or transgender person would agree.

The ideas and reasoning of the proposed regulations are troubling beyond their specific application to certain HUD programs. Every new regulation like this helps to build up a “national policy” on sexuality that will be used by courts and by other government departments and agencies as justification for their own cutting-edge efforts. And every new regulation like this helps to build up a notion of “discrimination” that can be used to exclude dissenting organizations, however respectful the services they offer, from the public square.