Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development Programs, 72642-72649 [2015-29342]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72642-72649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29342]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-5863-P-01]
RIN 2506-AC40


Equal Access in Accordance With an Individual's Gender Identity 
in Community Planning and Development Programs

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: As the Nation's housing agency, HUD administers programs 
designed to meet the goal of ensuring decent housing and a suitable 
living environment for all. In furtherance of this goal, in February 
2012, HUD promulgated a final rule entitled ``Equal Access to Housing 
in HUD Programs Regardless of Sexual Orientation or Gender Identity'' 
(Equal Access Rule), which requires that HUD-assisted and HUD-insured 
housing be made available without regard to actual or perceived sexual 
orientation, gender identity, or marital status, and which generally 
prohibits inquiries into sexual orientation or gender identity for the 
purpose of determining eligibility for such housing or otherwise making 
such housing available. HUD's Equal Access Rule provides a limited 
exception for inquiries about the sex of an individual to determine 
eligibility for housing provided or to be provided to the individual 
when the housing is a temporary, emergency shelter that involves the 
sharing of sleeping areas or bathrooms, or for inquiries made for the 
purpose of determining the number of bedrooms to which a household may 
be entitled. At that time, HUD decided not to set national policy 
regarding how transgender persons would be accommodated in temporary, 
emergency shelters that involve shared sleeping quarters or shared 
bathing facilities, but instead decided to monitor and review

[[Page 72643]]

its programs to determine if transgender individuals had greater access 
to temporary, emergency shelters as a result of the rule or if 
additional guidance or a national policy was warranted. HUD also 
committed to review the prohibition on inquiries contained in the Equal 
Access Rule. HUD has now monitored and reviewed its programs and, based 
on that review, is proposing this rule to require recipients and 
subrecipients of assistance from HUD's Office of Community Planning and 
Development (CPD), as well as owners, operators, and managers of 
shelters, buildings, and other facilities and providers of services 
covered by CPD's programs, to provide transgender persons and other 
persons who do not identify with the sex they were assigned at birth 
with access to programs, benefits, services, and accommodations in 
accordance with their gender identity. This proposed rule would also 
amend the definition of ``gender identity'' included in HUD's Equal 
Access Rule so the definition more clearly reflects the difference 
between actual and perceived gender identity. Finally, HUD has 
completed its review of the inquiries provision, and the proposed rule 
would eliminate the Equal Access Rule's current prohibition on 
inquiries related to sexual orientation or gender identity, while 
maintaining the prohibition against discrimination on those bases.

DATES: Comment Date: January 19, 2016.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Regulations Division, Office of General 
Counsel, Department of Housing and Urban Development, 451 7th Street 
SW., Room 10276, Washington, DC 20410-0500. Communications must refer 
to the above docket number and title. There are two methods for 
submitting public comments. All submissions must refer to the above 
docket number and title.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make them immediately available to 
the public. Comments submitted electronically through the 
www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.

    Note:  To receive consideration as public comments, comments 
must be submitted through one of the two methods specified above. 
Again, all submissions must refer to the docket number and title of 
the rule.

    No Facsimile Comments. Facsimile (fax) comments are not acceptable.
    Public Inspection of Public Comments. All properly submitted 
comments and communications submitted to HUD will be available for 
public inspection and copying between 8 a.m. and 5 p.m., weekdays, at 
the above address. Due to security measures at the HUD Headquarters 
building, an advance appointment to review the public comments must be 
scheduled by calling the Regulations Division at 202-708-3055 (this is 
not a toll-free number). Individuals who are deaf or hard of hearing 
and individuals with speech impairments may access this number via TTY 
by calling the Federal Relay Service, toll free, at 800-877-8339. 
Copies of all comments submitted are available for inspection and 
downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Norm Suchar, Director, Office of 
Special Needs Assistance Programs, Office of Community Planning and 
Development, Department of Housing and Urban Development, 451 7th 
Street SW., Washington, DC 20410-7000; telephone number 202-708-4300 
(this is not a toll-free number). Persons who are deaf or hard of 
hearing and persons with speech impairments can access this number 
through TTY by calling the Federal Relay Service at 800-877-8339 (this 
is a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Background

    In order to address evidence of arbitrary exclusion of lesbian, 
gay, bisexual, and transgender individuals (LGBT) and their families 
from housing opportunities, HUD published its Equal Access Rule in the 
Federal Register on February 3, 2012, at 77 FR 5662. The Equal Access 
Rule, codified primarily at 24 CFR 5.100 and 5.105(a)(2) and in 
applicable program regulations, defines the terms sexual orientation 
and gender identity, at 24 CFR 5.100, and requires, at 24 CFR 
5.105(a)(2), that housing assisted or insured by HUD be made available 
to individuals and families without regard to an individual's actual or 
perceived sexual orientation, gender identity, or marital status. 
Certain other rules governing HUD housing programs were revised to 
clarify that all otherwise eligible families, regardless of sexual 
orientation, gender identity, or marital status of any member, have the 
opportunity to participate in HUD programs. The 2012 rule also revised 
24 CFR 203.33(b) by adding sexual orientation and gender identity, in 
addition to marital status, to the characteristics that an FHA-
certified lender may not take into consideration in determining the 
adequacy of a mortgagor's income.
    Further, Sec.  5.105(a)(2)(ii) prohibits owners and administrators 
of HUD-assisted or HUD-insured housing, approved lenders in a Federal 
Housing Administration (FHA) mortgage insurance program, and any other 
recipients or subrecipients of HUD funds from inquiring about sexual 
orientation or gender identity to determine eligibility for HUD-
assisted or HUD-insured housing or otherwise make such housing 
available. The prohibition on inquiries regarding sexual orientation or 
gender identity does not prohibit individuals from voluntarily self-
identifying sexual orientation or gender identity. Further, the rule 
provides a limited exception for inquiries about the sex of an 
individual to determine eligibility for housing provided or to be 
provided in temporary, emergency shelters with shared sleeping areas or 
bathrooms, or to determine the number of bedrooms to which a household 
may be entitled.
    In response to public comments recommending that HUD-assisted 
programs accommodate individuals in accordance with their gender 
identity, HUD stated in the preamble to the Equal Access Rule that it 
was not adopting a national policy on the placement of transgender 
persons in temporary, emergency shelters with shared sleeping quarters 
or shared bathing facilities at that time, but would instead monitor 
its programs to determine whether additional guidance or a national 
policy was needed to ensure equal access. In response to comments on 
the permissibility of inquiries about an individual's sex, HUD stated 
in the preamble to the Equal Access Rule that HUD would monitor its 
programs and review the prohibition on inquiries to determine whether 
additional guidance was necessary to provide transgender individuals 
with equal access to shelters and other housing. The Fair Housing

[[Page 72644]]

Act \1\ prohibits discrimination in the sale, rental, making 
unavailable, or financing of dwellings and in other housing-related 
activities on the basis of race, color, religion, sex, disability, 
familial status, and national origin, and thus prohibits making housing 
unavailable to a person because of that person's sex. However, 
temporary, emergency shelters and other buildings and facilities that 
are not covered by the Fair Housing Act \2\ because they provide short-
term, temporary accommodations may provide sex-segregated 
accommodations, when the buildings and facilities have physical 
limitations or configurations that require shared sleeping quarters or 
shared bathing facilities.\3\
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    \1\ 42 U.S.C. 3601 et seq. The Fair Housing Act contains no 
exemptions that permit covered housing to be sex-segregated. See 42 
U.S.C. 3603(b) (limited exemptions for sales of certain single-
family homes and for rooms or units in certain owner-occupied 
dwellings), sec. 3607 (exemptions for private clubs and religious 
organizations).
    \2\ An emergency shelter and other building and facility that 
would not qualify as dwellings under the Fair Housing Act are not 
subject to the Act's prohibition against sex discrimination and thus 
may be permitted by statute to be sex-segregated.
    \3\ For purposes of this proposed rule, shared sleeping quarters 
or shared bathing facilities are those that do not accommodate 
privacy. For example, a single user bathing facility with a lock on 
the door accommodates privacy, so it is not a ``shared bathing 
facility'' for purposes of the Equal Access Rule or this proposed 
rule.
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    Since the publication of the Equal Access Rule, HUD has conducted 
further review on the issue of transgender individuals' access to 
temporary, emergency shelters and other facilities with physical 
limitations or configurations that require shared sleeping quarters or 
bathing facilities, both in terms of individual cases and evidence from 
broader research. In this regard, HUD and the U.S. Interagency Council 
on Homelessness conducted a listening session on LGBT issues at the 
National Alliance to End Homelessness's 2012 National Conference on 
Ending Homelessness, where homeless service providers reported that, if 
given the choice between a shelter designated for their assigned birth 
sex or sleeping on the streets, many transgender shelter-seekers would 
choose the streets.\4\ One participant reported that, in her community, 
transgender women are excluded from the women's shelter, and conditions 
for them are so dangerous at the men's shelter that the shelter forces 
them to try to disguise their gender identity. HUD has also 
investigated several cases in which transgender persons have not been 
provided equal access to housing as required by the Equal Access Rule 
or have faced discrimination under the Fair Housing Act because of 
nonconformance with gender stereotypes.
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    \4\ See https://usich.gov/blog/hud_usich_hears_from_you_understanding_the_needs_of_the_lgbt_homeless_popul.
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    National research indicates that these denials of access are a 
common occurrence. According to one major national survey on the 
experiences of transgender persons, nearly half (47 percent) of all 
transgender respondents who accessed shelters left those shelters 
because of the treatment they received there--choosing the street over 
the abuse and indignity they experienced in the shelters.\5\ This 
survey further reported that 25 percent of transgender individuals who 
stayed in shelters were physically assaulted, and 22 percent were 
sexually assaulted, by another resident or shelter staff.\6\
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    \5\ Jamie M. Grant Et Al, Injustice at Every Turn: A Report of 
the National Transgender Discrimination Survey, National Center for 
Transgender Equality, 118 (2011).
    \6\ See Jamie M. Grant Et Al, Injustice at Every Turn: A Report 
of the National Transgender Discrimination Survey, National Center 
for Transgender Equality, footnote 5 at 117-18 (2011).
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    The experiences of homeless transgender youth, specifically, have 
also been documented, with similar findings of lack of access to 
housing and services. While research suggests that transgender youth 
represent less than one percent of the youth in the United States,\7\ a 
disproportionately high 6.8 percent of youth living on the streets 
identify as transgender.\8\ In addition, a report detailing case 
studies of runaway and homeless youth found that transgender youth were 
particularly at risk of emotional distress resulting from 
discrimination or harassment because of gender identity and supported 
establishing clear nondiscrimination and antiharassment policies 
relating to gender identity. With respect to facilities with shared 
sleeping or bathing areas, the policies recommended include addressing 
the needs of transgender persons and other persons who do not identify 
with the sex assigned to the individual at birth.\9\ A recent report on 
experiences of homeless LGBT youth also calls for the creation of safe 
and supportive protocols for housing and placement specific to 
transgender individuals and individuals who do not conform with gender 
stereotypes.\10\
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    \7\ Hannah Hussey, Beyond 4 walls and a Roof: Addressing 
Homelessness Among Transgender Youth, Center for American Progress, 
4 (2015).
    \8\ Administration for Children and Families, Street Outreach 
Program: Data Collection Project Executive Summary (U.S. Department 
of Health and Human Services, 2014).
    \9\ Andrew Burwick Et Al, Identifying and Serving LGBTQ Youth: 
Case Studies of Runaway and Homeless Youth Program Grantees, 
Mathematica Policy Research and the Williams Institute, 19 (2014).
    \10\ Meredith Dank Et Al, Surviving the streets of New York: 
Experiences of LGBTQ youth, YMSM, and YWSW Engaged in Survival Sex. 
Urban Institute, 70 (2015).
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    HUD has also reviewed steps that other Federal agencies have taken 
since the Equal Access Rule was promulgated in February 2012 to provide 
equal access for transgender persons and other persons who do not 
conform with gender stereotypes.
    U.S. Department of Justice Guidance. On April 9, 2014, the Office 
for Civil Rights, Office of Justice Programs, at the U.S. Department of 
Justice (DOJ) published guidance entitled ``Frequently Asked Questions: 
Nondiscrimination Grant Condition in the Violence Against Women 
Reauthorization Act of 2013'' \11\ (VAWA 2013 FAQ). VAWA 2013 
authorizes certain grants administered by DOJ, including grants to 
provide housing assistance for survivors of domestic violence. VAWA 
2013 also imposes a new grant condition that prohibits discrimination 
by recipients of such grants on the basis of sexual orientation and 
gender identity. The VAWA 2013 FAQ, which is not applicable to HUD-
assisted housing,\12\ addresses how a recipient of DOJ funds can 
operate a single-sex facility funded through VAWA and not discriminate 
on the basis of gender identity. The DOJ guidance states:
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    \11\ The guidance can be found at https://www.justice.gov/sites/default/files/ovw/legacy/2014/06/20/faqs-ngc-vawa.pdf.
    \12\ Unlike HUD program statutes, which do not authorize single-
sex housing, VAWA 2013 specifically authorizes funding for single-
sex shelters in certain narrowly defined circumstances.

    A recipient that operates a sex-segregated or sex-specific 
program should assign a beneficiary \13\ to the group or service 
which corresponds to the gender with which the beneficiary 
identifies, with the following considerations. In deciding how to 
house a victim, a recipient that provides sex-segregated housing may 
consider on a case-by-case basis whether a particular housing 
assignment would ensure the victim's health and safety. A victim's 
own views with respect to personal safety deserve serious 
consideration. The recipient should ensure that its services do not 
isolate or segregate victims based upon actual or perceived gender 
identity. A recipient may not make a determination about services 
for one beneficiary based on the complaints of another beneficiary 
when those complaints are based on gender identity.
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    \13\ The beneficiary is the individual seeking services from the 
recipient or service provider.
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    For the purpose of assigning a beneficiary to sex-segregated or 
sex-specific services, best practices dictate that the recipient 
should ask a transgender beneficiary which group or service the 
beneficiary wishes to join. The

[[Page 72645]]

recipient may not, however, ask questions about the beneficiary's 
anatomy or medical history or make burdensome demands for identity 
documents.\14\
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    \14\ See Department of Justice, Frequently Asked Questions: 
Nondiscrimination Grant Conditions in the Violence Against Women 
Reauthorization Act of 2013 (Apr. 9, 2013), FAQ 14, available at 
https://www.ovw.usdoj.gov/docs/faqs-ngc-vawa.pdf.

    U.S. Department of Education Guidance. Similarly, on December 1, 
2014, the U.S. Department of Education's Office for Civil Rights issued 
guidance providing that ``under Title IX [of the Education Amendments 
of 1972, which prohibits discrimination based on sex], a recipient 
generally must treat transgender students consistent with their gender 
identity in all aspects of the planning, implementation, enrollment, 
operation, and evaluation of single-sex classes.'' \15\
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    \15\ The guidance can be found at https://www.ed.gov/ocr/docs/faqs-title-ix-single-sex-201412.pdf. In this guidance the Department 
of Education considers discrimination based on gender identity as a 
form of sex discrimination. The guidance states, in relevant part: 
``All students, including transgender students and students who do 
not conform to sex stereotypes, are protected from sex-based 
discrimination under Title IX. Under Title IX, a recipient generally 
must treat transgender students consistent with their gender 
identity in all aspects of the planning, implementation, enrollment, 
operation, and evaluation of single-sex classes.'' See also the 
Department of Education's guidance, ``Questions and Answers on Title 
IX and Sexual Violence,'' which makes clear that sexual violence 
against transgender students is a form of sex discrimination 
prohibited by Title IX. The guidance can be found at https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf. In 
addition to this guidance, the Department of Labor, Office of Job 
Corps, issued guidance ensuring equal access and opportunity for 
transgender applicants and students in the Job Corps Program; see 
``Ensuring Equal Access for Transgender Applicants and Students to 
the Job Corps Program'' issued May 1, 2015, available at https://supportservices.jobcorps.gov/health/Pages/PINotices.aspx.
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    Given HUD's mission to provide equal housing opportunities for all, 
and the significant violence, harassment, and discrimination faced by 
transgender individuals and other persons who do not identify with the 
sex they were assigned at birth in attempting to access programs, 
benefits, services, and accommodations, HUD has a responsibility to 
provide leadership in establishing a policy for HUD's community 
development programs that addresses these serious concerns. After 
considering the feedback from HUD recipients and subrecipients, the 
experiences of the beneficiaries of HUD's community development 
programs who have been denied access because of their gender identity, 
research on transgender discrimination in shelter settings, and the 
actions taken by other Federal agencies to address access to programs, 
benefits, services, and accommodations in accordance with an 
individual's gender identity, CPD released Notice CPD-015-02, 
``Appropriate Placement for Transgender Persons in Single-Sex Emergency 
Shelters and Other Facilities,'' applicable to the Housing 
Opportunities for Persons with AIDS, Emergency Solutions Grants, and 
Continuum of Care programs, on February 20, 2015.\16\ This guidance 
states:
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    \16\ See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    HUD assumes that a recipient or subrecipient (``provider'') that 
makes decisions about eligibility for or placement into single-sex 
emergency shelters or other facilities will place a potential client 
(or current client seeking a new assignment) in a shelter or 
facility that corresponds to the gender with which the person 
identifies, taking health and safety concerns into consideration. A 
client's or potential client's own views with respect to personal 
health and safety should be given serious consideration in making 
the placement. For instance, if the potential client requests to be 
placed based on his or her sex assigned at birth, HUD assumes that 
the provider will place the individual in accordance with that 
request, consistent with health, safety, and privacy concerns. HUD 
assumes that a provider will not make an assignment or re-assignment 
based on complaints of another person when the sole stated basis of 
the complaint is a client or potential client's non-conformance with 
gender stereotypes.\17\
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    \17\ See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    CPD's guidance also outlines best practices for appropriate and 
inappropriate inquiries related to sex, and states that where a 
provider is uncertain of the client's sex or gender identity, the 
provider informs the client or potential client that the agency 
provides shelter based on the individual's gender identity. The 
guidance further states that there generally is no legitimate reason 
for the provider to request documentation of a person's sex in order to 
determine appropriate placement, nor should the provider have any basis 
to deny access to a single-sex emergency shelter or facility solely 
because the provider possesses identity documents indicating a sex 
different than the client's or potential client's gender identity. 
Further, the provider may not ask questions or otherwise seek 
information or documentation concerning the person's anatomy or medical 
history, nor consider a client ineligible for an emergency shelter or 
other facility because the client's appearance or behavior does not 
conform with gender stereotypes. In addition, the guidance provides 
examples of steps that providers may take to address safety or privacy 
concerns, and says that providers should train staff on adhering to 
this guidance.\18\
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    \18\ See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.
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II. This Proposed Rule

    To adopt requirements consistent with the guidance recently 
published by HUD, HUD is proposing to add in 24 CFR part 5 a new 
section that would require recipients and subrecipients of assistance 
under the HOME Investment Partnerships program, Community Development 
Block Grant program, Housing Opportunities for Persons with AIDS 
program, Emergency Solutions Grants program, and the Continuum of Care 
program, as well as owners, operators, and managers of shelters and 
other buildings and facilities and providers of services funded in 
whole or in part by any of these programs, to provide equal access to 
programs, benefits, services, and accommodations in accordance with an 
individual's gender identity. If the proposed rule becomes a final 
rule, the final rule would be effective upon receipt of assistance 
after the effective date of the final rule. Nothing in this proposed 
rule is meant to prevent necessary and appropriate steps to address any 
fraudulent attempts to access services or legitimate safety concerns 
that may arise in any shelter, building, or facility covered by this 
rule.
    Prior to discussing the requirements that would be established in 
this section, it is important to clarify which individuals would be 
covered by the protections of this new section. While some individuals 
refer to themselves as transgender, other persons who do not identify 
with the sex they were assigned at birth may use other terms to 
describe themselves. For this reason, the proposed rule seeks to ensure 
that all individuals, regardless of the terms they use to describe 
themselves, are afforded equal access to programs, benefits, services, 
and accommodations in accordance with their gender identity.
    The following requirements would be established by this proposed 
rule:
    Sec.  5.100--Revised definition of gender identity.
    HUD is proposing to amend the definition of gender identity in 
Sec.  5.100, which currently provides that ``Gender identity means 
actual or perceived gender-related characteristics.'' This

[[Page 72646]]

definition of gender identity, which was adopted by HUD in its 2012 
Equal Access Rule for purposes of ensuring equal access in HUD-assisted 
and HUD-insured housing, is the same definition that was used in the 
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 
2009, 18 U.S.C. 249. While this definition is effective for purposes of 
prosecuting hate crimes, HUD has concluded that it would be more 
effective for purposes of ensuring equal access to HUD programs to 
separate the definitions of actual and perceived gender identity. The 
Department is therefore proposing to amend the definition of gender 
identity to read as follows: ``Gender identity means the gender with 
which a person identifies, regardless of the sex assigned to that 
person at birth. Perceived gender identity means the gender with which 
a person is perceived to identify based on that person's appearance, 
behavior, expression, other gender-related characteristics, or sex 
assigned to the individual at birth.'' Perceived gender identity may 
differ from the identity with which a person identifies.
    Sec.  5.106--Providing access in accordance with an individual's 
gender identity in community planning and development programs.
    HUD proposes to add a new Sec.  5.106, which would contain equal 
access provisions specifically tailored to HUD's community development 
programs. This proposed new provision would be placed after the more 
general equal access provisions applicable to all HUD housing programs, 
added in 2012 to Sec.  5.105.
    Section 5.106(a) would identify the programs covered by the new 
Sec.  5.106. Section 5.106 would apply to recipients and subrecipients 
of assistance under the HOME Investment Partnerships program (24 CFR 
part 92), Community Development Block Grant program (24 CFR part 570), 
Housing Opportunities for Persons with AIDS program (24 CFR part 574), 
Emergency Solutions Grants program (24 CFR part 576), or Continuum of 
Care program (24 CFR part 578), 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 of these programs.
    Section 5.106(b) is the operative provision in Sec.  5.106. Under 
this subsection, a recipient, subrecipient, or provider would be 
required to establish, amend, or maintain program admissions, 
occupancy, and operating policies and procedures, including policies 
and procedures to protect individuals' privacy and security, so that 
equal access is provided to individuals based on their gender identity. 
This requirement includes tenant selection and admission preferences. 
The provision also requires that services, benefits, and accommodations 
be provided in a manner that affords equal access to the individual's 
family.\19\
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    \19\ As noted above, the Fair Housing Act prohibits familial 
status discrimination. Accordingly, housing providers covered by the 
Fair Housing Act may not discriminate based on familial status 
unless the housing meets statutory and regulatory requirements for 
housing for older persons. 42 U.S.C. 3607(b); 24 CFR part 100, 
subpart E.
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    Section 5.106(c) addresses temporary, emergency shelters and other 
buildings and facilities with physical limitations or configurations 
that require shared sleeping quarters or shared bathing facilities. 
This section requires that the placement and accommodation of 
individuals in such facilities that are permitted to be single-sex 
because they are not covered by the Fair Housing Act must be made in 
accordance with the individual's gender identity.
    The only exception to the requirement to accommodate and serve a 
person in accordance with the individual's gender identity is that the 
recipient, subrecipient, owner, operator, manager, or provider may 
consider, on a case-by-case basis, whether a particular housing 
assignment would ensure health and safety. It is prohibited for such a 
determination to be based solely on a person's actual or perceived 
gender identity or on complaints of other shelter residents when those 
complaints are based on actual or perceived gender identity. It is 
likewise prohibited to deny appropriate placement based on a perceived 
threat to health or safety that can be mitigated some other less 
burdensome way (e.g., providing the transgender shelter seeker the 
option to use single-use bathing facilities).
    Section 5.106(d) requires that when such a determination is made, 
the recipient, subrecipient, owner, operator, manager, or provider is 
required to provide either (1) equivalent alternative accommodation, 
benefits, and services or (2) a referral to a comparable alternative 
program that meets the needs of the individual. HUD expects the 
recipient, subrecipient, owner, operator, manager, or provider to refer 
the individual to a comparable alternative program that can more 
appropriately mitigate or eliminate the safety risk and that has 
available accommodations, or offer the individual equivalent 
alternative accommodation (e.g., a hotel or motel voucher), benefits, 
and services. HUD anticipates that the use of this limited exception 
for the provision of equivalent alternative accommodations, benefits, 
and services or referral to a comparable alternative program would be 
rare, since it would not apply unless the facts and circumstances 
demonstrated a nondiscriminatory risk to health or safety that could 
not be eliminated or appropriately mitigated by policy adjustments and 
physical modifications to buildings and facilities.
    Section 5.106(e) requires that records of case-by-case 
determinations must be kept by the recipient, subrecipient, owner, 
operator, manager, or provider, including when the determination is 
made that an individual cannot safely be served in accordance with the 
individual's gender identity. Where an alternative placement is made, 
recipients, subrecipients, owners, operators, managers, or providers 
must thoroughly document the reasons for that placement, in accordance 
with the recordkeeping requirements established in this subsection. 
Further, the recordkeeping section proposes that when a referral is 
made, the recipient, subrecipient, owner, operator, manager, or 
provider documents the facts and circumstances regarding the referral 
and whether the individual and the individual's family, in instances 
where the individual presents with a family, has been admitted and 
accommodated.
    Sec.  5.105(a)(2)(ii)--Removal of prohibited inquiries.
    In the preamble to HUD's 2012 Equal Access Rule, HUD stated that it 
would review the prohibition of inquiries in Sec.  5.105(a)(2)(ii) 
following monitoring of the application of this provision in HUD 
programs. As discussed earlier in this preamble, CPD released Notice 
CPD-015-02 ``Appropriate Placement for Transgender Persons in Single-
Sex Emergency Shelters and Other Facilities,'' applicable to the 
Housing Opportunities for Persons with AIDS, Emergency Solutions 
Grants, and Continuum of Care programs, on February 20, 2015,\20\ which 
provided that HUD expected recipients, subrecipients, and providers to 
accommodate individuals in accordance with the individual's gender 
identity. The guidance states that where a provider is uncertain of the 
client's sex or gender identity and that information matters for the 
determination of placement, the provider informs the client or 
potential client that the agency provides shelter based on the 
individual's gender identity. HUD now believes, however, that the 
prohibition

[[Page 72647]]

of inquiries at Sec.  5.105(a)(2)(ii) may hinder a provider from making 
an appropriate placement decision for fear of violating the rule. For 
this reason, HUD is proposing to remove the prohibition of inquiries.
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    \20\ See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.
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    HUD's intent in proposing removal of Sec.  5.105(a)(2)(ii) is not 
to now permit recipients or subrecipients to ask questions in order to 
seek information that could be used for discriminatory purposes. 
Rather, HUD is proposing removal because Sec.  5.105(a)(2)(ii) has 
raised several legitimate questions about implementation. Removal of 
Sec.  5.105(a)(2)(ii) would allow shelters and other facilities with 
physical limitations or configurations that require shared sleeping 
quarters or shared bathing facilities to ask the individual's gender 
identity, and it would permit inquiries of the individual's gender 
identity and sexual orientation to determine the number of bedrooms to 
which a household is entitled. Removal of Sec.  5.105(a)(2)(ii) also 
reaffirms that HUD permits mechanisms for voluntary and anonymous 
reporting of sexual orientation or gender identity for compliance with 
data collection requirements of State and local governments or Federal 
assistance programs.

III. Findings and Certifications

Regulatory Review--Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects; distributive impacts; and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. Under Executive Order 12866 (Regulatory Planning and 
Review), a determination must be made whether a regulatory action is 
significant and, therefore, subject to review by the Office of 
Management and Budget (OMB) in accordance with the requirements of the 
order.
    This proposed rule is consistent with Administration policy, as has 
been noted in the preamble by citing to policy already implemented by 
the U.S Department of Education, the U.S. Department of Justice, the 
U.S. Department of Labor, and the CPD guidance already implemented by 
HUD. This proposed rule clarifies how facilities funded by CPD that 
have shared sleeping quarters or shared bathing facilities comply with 
the requirement that equal access be provided to programs, buildings, 
facilities, services, benefits, and accommodations in accordance with 
the individual's gender identity. This clarification should provide 
benefits to clients accessing CPD-funded, temporary, emergency shelters 
and other buildings and facilities by assuring all clients receive 
equal access, and will benefit the CPD-funded facilities by making 
compliance with HUD's equal access requirements easier.
    In this proposed rule, HUD recognizes a limited exception to 
accommodating individuals in accordance with the individual's gender 
identity when a recipient, subrecipient, owner, operator, manager, or 
provider identifies a legitimate safety risk that cannot be eliminated 
or appropriately mitigated and makes a written case-by-case analysis. 
The written case-by-case analysis only applies when the benefits, 
services, and accommodations are not being provided to an individual in 
accordance with the individual's gender identity. The written case-by-
case analysis benefits the client accessing the services and the 
recipient, subrecipient, owner, operator, manager, or provider by 
keeping a record of when a legitimate safety risk is identified. The 
recipient, subrecipient, owner, operator, manager, or provider must 
also undertake reasonable efforts to ensure that equivalent alternative 
accommodations are provided or refer the individual to a comparable 
alternative program that will meet the individual's needs. This 
proposed rule also seeks to amend the definition of gender identity in 
Sec.  5.100 to clarify the difference between actual and perceived 
gender identity, which would be necessary if proposed Sec.  5.106 is 
adopted. This proposed rule also would eliminate the prohibition on 
inquiries relating to sexual orientation or gender identity in Sec.  
5.105(a)(2)(ii). Both of these proposed changes would make it easier 
for recipients, subrecipients, owners, operators, managers, and 
providers of programs, buildings, and facilities funded by CPD programs 
to comply with the requirements of existing Sec.  5.105(a)(2)(i) and 
proposed Sec.  5.106. An estimate of the cost of recording and 
retaining that written case-by-case analysis, in the limited situations 
in which it may apply, is discussed in the Paperwork Reduction Act 
section of this proposed rule.
    The docket file is available for public inspection in the 
Regulations Division, Office of General Counsel, Department of Housing 
and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 
20410-0500. Due to security measures at the HUD Headquarters building, 
please schedule an appointment to review the docket file by calling the 
Regulations Division at 202-402-3055 (this is not a toll-free number). 
Individuals who are deaf or hard of hearing and individuals with speech 
impairments may access this number via TTY by calling the Federal Relay 
Service at 800-877-8339 (this is a toll-free number).

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Approximately 4,000 providers participating in the CPD programs covered 
by this rule are small organizations, but the number of entities that 
would address the accommodation needs addressed by this rule is much 
lower. The benefit of this proposed rule is to ensure equal access to 
CPD programs, facilities, services, benefits, and accommodations. The 
rule does require organizations to make a written case-by-case analysis 
and referral in limited situations. Although HUD does not have any way 
to determine the number of written case-by-case analyses or referrals 
that will occur in any one year, HUD does not believe that costs will 
be significant for small service providers and estimates it will take a 
provider 15 minutes per case-by-case analysis and referral. HUD invites 
interested parties to provide data with which HUD can formulate better 
estimates of the compliance costs associated with the written notice 
and referral requirements of this proposed rule. Accordingly, for the 
foregoing reasons, the undersigned certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities. Notwithstanding HUD's determination that this proposed rule 
would not have a significant effect on a substantial number of small 
entities, HUD specifically invites comments regarding any less 
burdensome alternatives to this rule that will meet HUD's objectives 
and the principles in Executive Order 13559, as described in this 
preamble.

Paperwork Reduction Act

    The proposed rule requires CPD programs to include a written case-
by-case analysis and make referrals. This rule also requires the 
retention of

[[Page 72648]]

records to show that the case-by-case analysis was followed and 
referral requirements in this rulemaking have been met. HUD estimates 
that a case-by-case analysis and referral will be required infrequently 
given that the case-by-case analysis is only necessary when the 
provider is not providing accommodations to an individual in accordance 
with the gender with which an individual identifies because there is a 
legitimate safety risk that cannot be eliminated or appropriately 
mitigated. HUD estimates that only 0.05 percent of facilities that are 
covered by this proposed regulation will need to make a written case-
by-case analysis and referral, and estimates it will take an individual 
15 minutes to complete the case-by-case analysis and referral. This 
estimate includes the time required to write down the basis for the 
analysis, identify service providers that provide similar services, and 
make the referral.
    The information collection requirements for the CPD's HOME 
Investment Partnerships program, Community Development Block Grant 
program (State and entitlement), Housing Opportunities for Persons with 
AIDS program, Emergency Solutions Grants program, or Continuum of Care 
program impacted by this rule have been approved by OMB under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB 
control numbers 2506-0171, 2506-0085, 2506-0077, 2506-0133, 2506-0089, 
and 2506-0199. In accordance with the Paperwork Reduction Act, an 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information, unless the collection displays 
a currently valid OMB control number. The existing forms will be 
changed to include the new recordkeeping requirement added by this 
proposed rule.
    In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments 
from members of the public and affected agencies concerning this 
collection of information to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility.
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information.
    (3) Enhance the quality, utility, and clarity of the information to 
be collected.
    (4) Minimize the burden of the collection of information on those 
who are to respond; including through the use of appropriate automated 
collection techniques or other forms of information technology (e.g., 
by permitting electronic submission of responses).
    Interested persons are invited to submit comments regarding the 
information collection requirements in this rule. Comments must refer 
to the proposed rule by name and docket number (FR-5583-P-01) and must 
be sent to: HUD Desk Officer, Office of Management and Budget, New 
Executive Office Building, Washington, DC 20503, Fax number: 202-395-
6947; and Reports Liaison Officer, Office of Housing, Department of 
Housing and Urban Development, 451 7th Street SW., Room 9128, 
Washington, DC 20410.
    Interested persons may submit comments regarding the information 
collection requirements electronically through the Federal eRulemaking 
Portal at https://www.regulations.gov. HUD strongly encourages 
commenters to submit comments electronically. Electronic submission of 
comments allows the commenter maximum time to prepare and submit a 
comment, ensures timely receipt by HUD, and enables HUD to make them 
immediately available to the public. Comments submitted electronically 
through the https://www.regulations.gov Web site can be viewed by other 
commenters and interested members of the public. Commenters should 
follow the instructions provided on that site to submit comments 
electronically.

Environmental Impact

    This proposed rule sets forth nondiscrimination standards. 
Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically 
excluded from environmental review under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either: (i) Imposes substantial direct compliance costs on State and 
local governments and is not required by statute or (ii) preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive order. This proposed rule would not have 
federalism implications and would not impose substantial direct 
compliance costs on state and local governments or preempt state law 
within the meaning of the Executive order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments, and on the private sector. This proposed rule does 
not impose any Federal mandates on any State, local, or tribal 
governments, or on the private sector, within the meaning of the UMRA.

List of Subjects in 24 CFR Part 5

    Administrative practice and procedure, Aged, Claims, Drug abuse, 
Drug traffic control, Grant programs--housing and community 
development, Grant programs--Indians, Individuals with disabilities, 
Loan programs--housing and community development, Low and moderate 
income housing, Mortgage insurance, Pets, Public housing, Rent 
subsidies, Reporting and recordkeeping requirements.

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

0
1. The authority citation for 24 CFR part 5 continues to read as 
follows:

    Authority:  42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 
3535(d), Sec. 327, Pub. L. 109-115, 119 Stat. 2936, and Sec. 607, 
Pub. L. 109-162, 119 Stat. 3051.

0
2. In Sec.  5.100, revise the definition for ``Gender identity'' to 
read as follows:


Sec.  5.100  Definitions.

* * * * *
    Gender identity means the gender with which a person identifies, 
regardless of the sex assigned to that person at birth. Perceived 
gender identity means the gender with which a person is perceived to 
identify based on that person's appearance, behavior, expression, other 
gender related characteristics, or sex assigned to the individual at 
birth.
* * * * *


Sec.  5.105  [Amended]

0
3. In Sec.  5.105, remove paragraph (a)(2)(ii) and redesignate 
paragraph (a)(2)(i) as paragraph (a)(2).
0
4. Add Sec.  5.106 to read as follows:


Sec.  5.106  Providing access in accordance with the individual's 
gender identity in community planning and development programs.

    (a) Applicability. This section applies to recipients and 
subrecipients of assistance under the HOME Investment Partnerships 
program (24 CFR part 92), Community Development Block Grant program (24 
CFR part 570), Housing Opportunities for Persons with AIDS program (24 
CFR part 574), Emergency Solutions Grants program (24 CFR part 576), or 
Continuum of Care program (24

[[Page 72649]]

CFR part 578), 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 of these programs.
    (b) Equal access in accordance with gender identity. The 
admissions, occupancy, and operating policies and procedures of 
recipients, subrecipients, owners, operators, managers, and providers 
identified in paragraph (a) of this section, including policies and 
procedures to protect privacy and security, shall be established or 
amended, as necessary, and administered so:
    (1) Equal access to programs, shelters, other buildings and 
facilities, benefits, services, and accommodations is provided to 
individuals in accordance with the individual's gender identity, and in 
a manner that affords equal access to the individual's family; and
    (2) Individuals are placed, served, and accommodated in accordance 
with the individual's gender identity.
    (c) Placement and accommodation in facilities with shared sleeping 
quarters or shared bathing facilities. Placement and accommodation of 
individuals in shelters and other buildings and facilities with 
physical limitations or configurations that require and are permitted 
to have shared sleeping quarters or shared bathing facilities shall be 
made in accordance with the individual's gender identity. Under narrow 
circumstances, a written case-by-case determination can be made as to 
whether an alternative accommodation is necessary to ensure health and 
safety. It shall be prohibited for such a determination to be based 
solely on a person's actual or perceived gender identity, the 
complaints of other clients, beneficiaries, or employees when those 
complaints are based on actual or perceived gender identity, or on an 
actual or perceived threat to health or safety that can be mitigated in 
some other way that is less burdensome. In order to avoid unwarranted 
denials of placement in accordance with an individual's gender 
identity, decisions to provide accommodations based on concern for the 
health and safety of the individual seeking accommodations should be 
based on the individual's own request to be otherwise accommodated.
    (d) Referrals. In any instance in which a case-by-case 
determination is made under paragraph (c) of this section, the 
recipient, subrecipient, owner, operator, manager, or provider shall 
ensure that an opportunity to access equivalent alternative 
accommodations, benefits, and services is provided or shall refer the 
individual to a comparable alternative program with availability that 
will meet the individual's needs.
    (e) Documentation and record retention. Providers shall document 
and maintain records of compliance with the requirements in paragraphs 
(b), (c), and (d) of this section for a period of 5 years, including 
but not limited to:
    (1) The specific facts, circumstances, and reasoning relied upon in 
any case-by-case determination that results in an alternative 
admission, accommodation, benefit, or service to an individual or their 
family;
    (2) The facts and circumstances regarding the opportunities to 
access alternative accommodations that are provided to an individual 
and their families by the recipient, subrecipient, owner, operator, 
manager, or provider; and
    (3) The facts, circumstances, and outcomes regarding each referral 
of an individual and their family to a comparable alternative program, 
including information regarding the benefits, services, and 
accommodations received.

    Dated: October 23, 2015.
Juli[aacute]n Castro,
Secretary.
[FR Doc. 2015-29342 Filed 11-19-15; 8:45 am]
BILLING CODE 4210-67-P