Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development Programs, 64763-64782 [2016-22589]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Rules and Regulations]
[Pages 64763-64782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22589]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR 5863-F-02]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: Through this final rule, HUD ensures equal access for 
individuals in accordance with their gender identity in programs and 
shelter funded under programs administered by HUD's Office of Community 
Planning and Development (CPD). This rule builds upon HUD's February 
2012 final rule entitled ``Equal Access to Housing in HUD Programs 
Regardless of Sexual Orientation or Gender Identity'' (2012 Equal 
Access Rule), which aimed to ensure that HUD's housing programs would 
be open to all eligible individuals and families regardless of sexual 
orientation, gender identity, or marital status. The 2012 Equal Access 
Rule, however, did not address how transgender and gender non-
conforming individuals should be accommodated in temporary, emergency 
shelters, and other buildings and facilities used for shelter, that 
have physical limitations or configurations that require and that are 
permitted to have shared sleeping quarters or shared bathing 
facilities. This final rule follows HUD's November 2015 proposed rule, 
which addressed

[[Page 64764]]

this issue and solicited public comment on measures to ensure that 
recipients and subrecipients of CPD funding--as well as owners, 
operators, and managers of shelters and other buildings and facilities 
and providers of services funded by CPD--grant equal access to such 
facilities and services to individuals in accordance with an 
individual's gender identity.
    This rule amends HUD's definition of ``gender identity'' to more 
clearly reflect the difference between actual and perceived gender 
identity and eliminates the prohibition on inquiries related to sexual 
orientation or gender identity, so that service providers can ensure 
compliance with this rule. The removal of the prohibition on inquiries 
related to sexual orientation or gender identity does not alter the 
requirement to make housing assisted by HUD and housing insured by the 
Federal Housing Administration (FHA) available without regard to actual 
or perceived sexual orientation or gender identity. Lastly, without 
changing the scope of the requirement to provide equal access without 
regard to sexual orientation, this rule makes a technical amendment to 
the definition of ``sexual orientation,'' which HUD adopted from the 
Office of Personnel Management's (OPM) definition of the term in 2012, 
to conform to OPM's current definition.
    In order to ensure that individuals are aware of their rights to 
equal access, HUD is publishing elsewhere in this issue of the Federal 
Register for public comment, in accordance with the Paperwork Reduction 
Act of 1995, a document entitled ``Equal Access Regardless of Sexual 
Orientation, Gender Identity, or Marital Status'' for owners or 
operators of CPD-funded shelters, housing, facilities, and other 
buildings to post on bulletin boards and in other public spaces where 
information is typically made available.

DATES: Effective: October 21, 2016.

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 with who are deaf or hard of 
hearing or have 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

A. HUD's Previous Efforts To Ensure Equal Access

    On February 3, 2012, at 77 FR 5662, HUD issued its 2012 Equal 
Access Rule, which defined the terms ``sexual orientation'' and 
``gender identity,'' and required that HUD-assisted housing, including 
all housing funded by CPD, and housing insured by FHA be made available 
to individuals and families without regard to actual or perceived 
sexual orientation, gender identity, or marital status. The 2012 Equal 
Access Rule also generally prohibited inquiries into sexual orientation 
or gender identity for the purpose of determining eligibility for, or 
availability of, such housing. In the 2012 Equal Access Rule, HUD 
declined to adopt a national policy on the placement of transgender 
persons in temporary, emergency shelters with shared sleeping quarters 
or shared bathing facilities, deciding instead to conduct research and 
monitor its programs to determine whether additional guidance or 
national policy was needed to ensure equal access for transgender and 
gender nonconforming persons.\1\ HUD also decided to conduct a similar 
review to determine whether additional guidance was needed with regard 
to the prohibition on inquiries.
---------------------------------------------------------------------------

    \1\ Gender nonconforming persons are persons who do not follow 
other people's ideas or stereotypes about how they should look or 
act based on their sex assigned at birth.
---------------------------------------------------------------------------

    As a result of its review, HUD determined that the 2012 Equal 
Access Rule did not adequately address the significant barriers faced 
by transgender and gender nonconforming persons when accessing 
temporary, emergency shelters and other facilities with physical 
limitations or configurations that require and are permitted to have 
shared sleeping quarters or bathing facilities. Specifically, HUD found 
that transgender and gender nonconforming persons continue to 
experience significant violence, harassment, and discrimination in 
attempting to access programs, benefits, services, and accommodations. 
For instance, at a listening session on lesbian, gay, bisexual, and 
transgender (LGBT) issues conducted with the U.S. Interagency Council 
on Homelessness, homeless service providers reported that transgender 
persons are often discriminatorily excluded from shelters or face 
dangerous conditions in the shelters that correspond to their sex 
assigned at birth. Some commenters reported that, if given the choice 
between a shelter designated for assigned birth sex or sleeping on the 
streets, many transgender shelter-seekers would choose the streets.
    HUD also investigated individual cases where transgender persons 
were not provided equal access as required by the 2012 Equal Access 
Rule, or they faced unlawful discrimination under the Fair Housing Act. 
HUD also reviewed national research that revealed that lack of access 
to shelter for transgender and gender nonconforming persons, 
particularly those who were also homeless youths, was a pervasive 
problem and reviewed the efforts of other Federal agencies to provide 
equal access to transgender and gender nonconforming persons. HUD found 
that multiple agencies prohibit discrimination on the basis of sexual 
orientation and gender identity and also require that grant recipients 
treat transgender persons consistent with their gender identity. 
Specifically, HUD found guidance from other Federal agencies supporting 
the position that grant recipients could accommodate transgender 
individuals in accordance with their gender identity in Federal 
programs, including those program that funded single-sex facilities.
    On February 20, 2015, CPD issued guidance, entitled ``Appropriate 
Placement for Transgender Persons in Single-Sex Emergency Shelters and 
Other Facilities'' (CPD-15-02), which applied to the following CPD 
programs: Housing Opportunities for Persons With AIDS (HOPWA), 
Emergency Solutions Grants (ESG), and Continuum of Care (CoC). This 
guidance clarified that HUD expected recipients and subrecipients under 
these programs to base placement decisions on the gender with which a 
person identifies--and not on another person's stereotype-based 
complaints--taking into consideration health and safety concerns and 
giving serious consideration to the transgender or gender nonconforming 
person's own personal health and safety concerns. The guidance also 
outlined best practices for providers.

B. The November 2015 Proposed Rule

    On November 20, 2015, at 80 FR 72642, following careful review of 
information about the treatment of transgender persons in temporary, 
emergency shelters, HUD proposed a second Equal Access rule, entitled 
``Equal Access in Accordance with an Individual's Gender Identity in 
Community Planning and Development Programs'' (CPD Equal Access). In 
this rulemaking, HUD proposed to add a new section to its regulations 
in 24 CFR part 5 that would require recipients and subrecipients of 
assistance under CPD programs--as well as owners, operators,

[[Page 64765]]

and managers of shelters and other buildings and facilities and 
providers of services funded in whole or in part by CPD programs--to 
provide equal access to programs, benefits, services, and 
accommodations in accordance with an individual's gender identity.
    Specifically, the rule proposed to add to 24 CFR part 5 a new Sec.  
5.106, which would contain equal access provisions tailored to CPD 
programs. Section 5.106(a) proposed to identify the scope of its 
coverage as including recipients and subrecipients of assistance under 
the following CPD programs: HOME Investment Partnerships (HOME) (24 CFR 
part 92), Community Development Block Grant (CDBG) (24 CFR part 570), 
HOPWA (24 CFR part 574), ESG (24 CFR part 576), CoC (24 CFR part 578), 
as well as owners, operators, 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) proposed to require CPD recipients, subrecipients, 
owners, operators, managers, and providers to establish or amend, as 
necessary, and administer program admissions, occupancy, and operating 
policies and procedures, including policies and procedures to protect 
individuals' privacy and security, so that equal access to programs, 
shelters, other buildings and facilities, benefits, services, and 
accommodations are provided to individuals in accordance with their 
gender identity. That section also proposed to require that such equal 
access be provided in a manner that affords equal access to the 
individual's family.
    Section 5.106(c) proposed to require that the placement and 
accommodation of individuals in facilities that are permitted to be 
single-sex must be made in accordance with the individual's gender 
identity. The proposed rule provided that, under narrow circumstances, 
a written case-by-case determination could be made as to whether an 
alternative accommodation is necessary to ensure health and safety. The 
proposed rule contained a prohibition 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 also proposed to prohibit 
the denial of appropriate placement based on a perceived threat to 
health or safety that can be mitigated some other, less burdensome way 
(e.g., by providing the transgender shelter seeker the option to use 
single occupant bathing facilities). Lastly, the rule proposed that, 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.
    Section 5.106(d) proposed to require that when a case-by-case 
determination based on health and safety is made under Sec.  5.106(c), 
the entity providing the alternative accommodation must provide either 
(1) equivalent alternative accommodation, benefits, and services or (2) 
a referral to a comparable alternative program with availability that 
meets the needs of the individual.
    Section 5.106(e) proposed to require recipients, subrecipients, or 
providers to keep records of compliance with paragraphs (b) and the 
case-by-case determinations under paragraph (c) of this section, 
including the facts, circumstances, and reasoning relied upon that lead 
to any alternative admission, accommodation, benefit, or service to an 
individual and the individual's family; the facts and circumstances 
regarding the opportunities to access alternative accommodations 
provided to an individual and the individual's family; and the outcomes 
regarding referral to an alternative program of an individual and the 
individual's family.
    In addition, the rule proposed to amend the definition of ``gender 
identity'' at Sec.  5.100 to separate the definitions of ``actual'' and 
``perceived'' gender identity. In brief, the rule proposed to replace 
HUD's current definition, which mirrored the definition in the Matthew 
Shepard/James Byrd Hate Crimes Prevention Act of 2009 (Public Law 114-
38, approved October 28, 2009) and instead adopt a definition that 
clarified the difference between actual and perceived gender identity.
    Lastly, the proposed rule sought to remove the prohibition on 
inquiries provision at Sec.  5.105(a)(2)(ii), which prohibited 
providers in most circumstances from asking individuals their sexual 
orientation or gender identity. HUD reasoned that the provision raised 
several legitimate questions about implementation, and its removal 
would allow temporary, emergency shelters or other buildings and 
facilities with physical limitations or configurations that require and 
are permitted to have shared sleeping quarters or shared bathing 
facilities to ask an individual's gender identity for nondiscriminatory 
purposes, such as to determine the appropriate placement for the 
individual or the number of bedrooms to which a household is entitled.

C. Recent Developments in the Interpretation of Federal Law and 
Applicable Research

    After HUD issued the November 2015 proposed rule, the Center for 
American Progress released a new study specifically focusing on 
discrimination experienced by transgender individuals seeking access to 
shelters, the Department of Justice (DOJ) and the Department of 
Education issued guidance for educators on providing equal access for 
transgender students in schools, and the Department of Health and Human 
Services issued a final rule to ensure equal access to health programs 
and activities administered by that Department or established under 
title I of the Affordable Care Act.
    On January 7, 2016, the Center for American Progress released the 
results of a discrimination telephone test, carried out across four 
States, that measured the degree to which transgender homeless women 
can access a shelter in accordance with their gender identity, as well 
as the types of discrimination and mistreatment they face in the 
process.\2\ The study consisted of 100 phone calls to homeless shelters 
in four States, over 3 months, by testers who identified themselves as 
transgender women seeking access to both women's shelters and general 
shelters. The study found that only 30 percent of the shelters 
contacted by the testers were willing to house the transgender women 
with other women, 13 percent offered to house the transgender women in 
isolation or with men, 21 percent refused service altogether, and 
another 21 percent were unsure or unclear as to whether they could 
house transgender women with other women. The survey results also found 
that women's shelters were more likely to provide services consistent 
with an individual's gender identity than were mixed gender shelters. 
During interactions on the phone with shelter employees, testers 
experienced the following: they were often referred to using the wrong 
gender or shelter employees made other statements to discredit their 
gender identity, shelter employees made references to the testers' 
genitalia or to surgery as requirements for appropriate housing, and 
shelter employees stated

[[Page 64766]]

that other residents would be made uncomfortable or unsafe by the 
tester. Of the shelters called, 27 percent had received HUD funds at 
some point.
---------------------------------------------------------------------------

    \2\ Caitlin Rooney, et al., Center for American Progress and the 
Equal Rights Center Discrimination Against Transgender Women Seeking 
Access to Homeless Shelters, January 7, 2016, available at: https://cdn.americanprogress.org/wp-content/uploads/2016/01/06113001/HomelessTransgender.pdf.
---------------------------------------------------------------------------

    In May 2016, DOJ and the Department of Education released guidance 
summarizing the legal obligations of schools regarding transgender 
students.\3\ The guidance specifically emphasizes that schools must 
``treat a student's gender identity as the student's sex for purposes 
of Title IX and its implementing regulations.'' In sex-segregated 
activities and facilities, transgender students ``must be allowed to 
participate in such activities and access such facilities consistent 
with their gender identity.'' The guidance also requires schools to 
provide a safe environment for all students, including transgender 
students, and requires that schools treat students consistent with 
their gender identity regardless of records or identification documents 
indicating a different sex.
---------------------------------------------------------------------------

    \3\ Dear Colleague Letter on Transgender Students May 13, 2016, 
https://www.justice.gov/opa/file/850986/download.
---------------------------------------------------------------------------

    Also in May 2016, the Department of Health and Human Services 
issued final regulations entitled ``Nondiscrimination in Health 
Programs and Activities,'' which implement section 1557 of the 
Affordable Care Act.\4\ Section 1557 prohibits discrimination in health 
programs and activities on the basis of sex, and the rule provides that 
``a covered entity shall treat individuals consistent with their gender 
identity, except that a covered entity may not deny or limit health 
services that are ordinarily or exclusively available to individuals of 
one sex, to a transgender individual based on the fact that the 
individual's sex assigned at birth, gender identity, or gender 
otherwise recorded is different from the one to which such health 
services are ordinarily or exclusively available.''
---------------------------------------------------------------------------

    \4\ See 81 FR 31375, https://www.federalregister.gov/articles/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities.
---------------------------------------------------------------------------

II. Changes Made at the Final Rule Stage

    In response to public comment and upon further consideration by HUD 
of the issues presented in this rulemaking, HUD makes the following 
changes at this final rule stage:
    In Sec.  5.100, the proposed definition of ``perceived gender 
identity'' is modified so that the definition states that ``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, sex assigned at birth, or 
identification in documents. This change was made in response to public 
comments stating that transgender persons often face difficulty in 
being accommodated in accordance with their gender identity because it 
is difficult to obtain identity documents that accurately list their 
gender identity. The words ``identified in documents'' were added to 
the definition to make clear that the identification of gender or sex 
on an individual's identity document may be different than a person's 
actual gender identity. The definition of ``gender identity'' in the 
final rule, which is unchanged from the proposed rule, makes clear that 
``gender identity'' means the gender with which a person identifies, 
regardless of the sex assigned to that person at birth and regardless 
of the person's perceived gender identity. Reading these definitions 
together, ``gender identity'' is therefore determined regardless of the 
gender identified on an individual's identity documents.
    This rule also makes a technical amendment to the definition of 
``sexual orientation.'' The 2012 Equal Access Rule defined ``sexual 
orientation'' as ``homosexuality, heterosexuality, or bisexuality,'' 
following a definition that OPM used in the context of the Federal 
workforce in its publication ``Addressing Sexual Orientation in Federal 
Civilian Employment: A Guide to Employee Rights.'' OPM's publication 
was revised in June 2015, and HUD is amending its definition to conform 
to the new OPM definition, which is ``sexual orientation means one's 
emotional or physical attraction to the same and/or opposite sex.'' 
(See https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/addressing-sexual-orientation-and-gender-identity-discrimination-in-federal-civilian-employment.pdf.) This change in 
definition does not change the coverage provided by the prior 
definition but is simply intended to use terminology that is up-to-
date.
    In Sec.  5.105(a)(2), HUD adopts the proposal to eliminate the 
inquiries provision in Sec.  5.105(a)(2)(ii). With the removal of Sec.  
5.105(a)(2)(ii), Sec.  5.105(a)(2)(i) is redesignated as Sec.  
5.105(a)(2).
    In Sec.  5.106, HUD makes several changes. HUD has changed the 
heading of this section from ``Providing access in accordance with the 
individual's gender identity in community planning and development 
programs'' to ``Equal access in accordance with the individual's gender 
identity in community planning and development programs.'' Although 
this is not a substantive change, the change appropriately emphasizes 
that the purpose of the rule is equal access in accordance with an 
individual's gender identity in CPD programs generally. Equal access 
ensures that, when consideration of sex is prohibited or not relevant, 
individuals will not be discriminated against based on actual or 
perceived gender identity, and where legitimate consideration of sex or 
gender is appropriate, such as in a facility providing temporary, short 
term shelter that is not covered by the Fair Housing Act \5\ and which 
is legally permitted to operate as a single-sex facility,\6\ the 
individual's own self-identified gender identity will govern.
---------------------------------------------------------------------------

    \5\ The Fair Housing Act 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. 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 from Fair Housing Act coverage 
for sales of certain single family homes and for rooms or units in 
certain owner-occupied dwellings), and Sec.  3607 (exemptions from 
Fair Housing Act coverage for private clubs and religious 
organizations).
    \6\ Temporary, emergency shelters and other buildings and 
facilities that are not covered by the Fair Housing Act because they 
provide short-term, temporary accommodations may provide sex-
segregated accommodations, which they sometimes do to protect the 
privacy and security of individuals when the buildings and 
facilities have physical limitations or configurations that require 
shared sleeping quarters or shared bathing facilities. For purposes 
of this rule, shared sleeping quarters or shared bathing facilities 
are those that are designed for simultaneous accommodation of 
multiple individuals in the same space. For example, a single-user 
bathing facility with a lock on the door is not designated for 
simultaneous occupancy by multiple individuals, so it is not a 
``shared bathing facility'' for purposes of the Equal Access Rule or 
this rule.
---------------------------------------------------------------------------

    Section 5.106(a) is revised at the final rule stage to clarify that 
Sec.  5.106 applies to recipients and subrecipients of assistance from 
CPD, which include the specific programs identified at the proposed 
rule stage (HOME, CDBG, HOPWA, ESG, and CoC), as well as to the Housing 
Trust Fund program (with regulations at 24 CFR part 93) and the Rural 
Housing Stability Assistance Program (with regulations to be codified 
in 24 CFR part 579). As noted throughout the proposed rule, the rule 
was always intended to apply to recipients and subrecipients of CPD 
programs, as well as those who administer programs and services and 
provide temporary, emergency shelter funded by CPD programs, and HUD 
did not intend to exclude the new Housing Trust Fund and Rural Housing 
Stability

[[Page 64767]]

Assistance programs from the list of CPD programs in this paragraph.
    Section 5.106(b) addresses the admissions, occupancy, and operating 
policies and procedures of recipients, subrecipients, owners, 
operators, managers, and providers covered by this rule. Revised 
paragraph (b) adds that policies and procedures to protect health and 
safety, as well as privacy and security noted in the proposed rule, 
must be established, maintained, or amended, as necessary, and provides 
that all policies must be administered in a nondiscriminatory manner. 
HUD recognizes that in the temporary, emergency shelters covered by 
this rule, privacy, security, safety, and health concerns may arise as 
a result of the varied populations that reside in such facilities at 
any given time. The rule requires policies and procedures, if such 
policies and procedures have not already been updated, to reflect the 
obligation and to document the commitment of the provider to maintain a 
healthy and safe environment for all occupants and respect individual 
privacy without doing so in a way that is discriminatory or violates 
applicable Federal laws and regulations.
    HUD also revises paragraph (b) to add a provision that the policies 
and procedures must ensure that individuals are not subjected to 
intrusive questioning or asked to provide anatomical information or 
documentary, physical, or medical evidence of the individual's gender 
identity. This revision was made in response to public comment advising 
that transgender persons and gender nonconforming persons are often 
asked inappropriate, intrusive questions; asked to provide evidence 
about their physical anatomy; or asked for medical records relating to 
their gender identity or identification documents that record their 
gender identity. There are multiple reasons why this documentation is 
problematic and prohibited by this rule. Homeless persons encounter 
difficulties in maintaining their identification documents, and 
individuals whose gender identities differ from sex assigned at birth 
experience varying levels of difficulty in updating gender markers on 
identification documents. These barriers make it likely that an 
individual seeking homeless services and whose gender identity differs 
from their sex assigned at birth will possess identification documents 
that do not reflect that individual's gender identity, if they have 
identification documents at all. Further, gender identity is distinct 
from sex assigned at birth, is not associated with physical anatomy, 
and may not be indicated in medical records. For these reasons, HUD 
agrees with public commenters that it is important that transgender or 
gender nonconforming persons can self-identify their gender identity 
orally and not be asked intrusive questions or asked to provide 
documentary, physical, or medical evidence to prove their gender 
identity.
    Lastly, revised paragraph (b) also requires that such revisions 
ensure that amendments to CPD programs policies and procedures continue 
to include the existing requirement in Sec.  5.105(a)(2) that 
individuals are provided equal access to housing in CPD programs 
without regard to actual or perceived gender identity. While this 
rule's focus is on programs, owners, operators, and managers of 
shelters, buildings, and other facilities and providers of CPD-funded 
services that were not covered under HUD's 2012 Equal Access Rule, 
housing under CPD programs has already been required to ensure equal 
access to individuals based on their gender identity. HUD adds this 
provision to clarify that, when amending CPD program policies and 
procedures, they should continue to reflect the existing 2012 Equal 
Access Rule requirement that housing be made available without regard 
to gender identity.
    In Sec.  5.106(c), which addresses placement and accommodation in 
temporary, emergency 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, HUD 
removes the proposed rule language that under narrow circumstances, a 
written case-by-case determination could be made on whether an 
alternative accommodation for a transgender individual would be 
necessary to ensure health and safety. Public commenters expressed 
concern that the exception could be inappropriately used to avoid 
compliance with the equal access requirement, and that this 
``exception'' also targeted transgender individuals as a cause of 
concern with respect to health and safety. HUD was persuaded by the 
public commenters that the ``exception'' provision had the opposite 
effect than that intended by HUD. HUD's intention in the inclusion of 
this language was to strive to ensure the health and safety of 
transgender individuals in temporary, emergency shelters and other 
buildings and facilities. It was not to indicate that the very presence 
of transgender individuals was a cause for health and safety concerns 
nor to indicate, by allowing alternative accommodation, that HUD's only 
concern was the health and safety of transgender individuals and HUD 
was not concerned about any other occupants. HUD's regulations for the 
ESG program and the implementing guidance, make clear that temporary, 
emergency 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 have had, and 
continue to have, a responsibility to create a safe environment for all 
occupants, particularly those of special populations (see 24 CFR 
576.400(e)(3)(iii) for more information).
    This final rule thus revises paragraph (c) of Sec.  5.106 to 
provide that placement and accommodation of individuals shall be made 
in accordance with an individual's gender identity, and it removes 
language that permits an exception to this rule where a provider makes 
a written case-by-case determination on whether an alternative 
accommodation for a transgender individual would be necessary to ensure 
health and safety. There are various measures that HUD's providers may 
take to fulfill their duty to create a safe environment for all, 
including transgender and gender nonconforming individuals, and to 
ensure that HUD-funded projects are free from discrimination. As 
preemptive steps, providers are strongly encouraged to post a notice of 
rights under this rule and under HUD's 2012 Equal Access Rule on 
bulletin boards and in other public spaces where information is made 
available, to clearly establish expectations. In order to ensure that 
individuals are aware of their rights to equal access, HUD proposes to 
require owners and operators of CPD-funded shelters and facilities to 
post on bulletin boards and in other public spaces where information is 
typically made available a notice entitled ``Equal Access Regardless of 
Sexual Orientation, Gender Identity, or Marital Status for HUD's 
Community Planning and Development Programs,'' which HUD is publishing 
in today's Federal Register for public comment, in accordance with the 
Paperwork Reduction Act of 1995. In addition, HUD Technical Assistance 
materials provide a sample antidiscrimination policy that providers may 
consider adopting to further clarify expectations to persons as they 
enter the project.\7\
---------------------------------------------------------------------------

    \7\ See Equal Access for Transgender People: Supporting 
Inclusive Housing and Shelters https://www.hudexchange.info/resources/documents/Equal-Access-for-Transgender-People-Supporting-Inclusive-Housing-and-Shelters.pdf.

---------------------------------------------------------------------------

[[Page 64768]]

    Even with antidiscrimination policies clearly articulated, 
occupants may express concerns or engage in other behavior toward 
transgender or gender nonconforming persons. If some occupants 
initially present concerns about transgender or gender nonconforming 
occupants to project staff and managers, staff should treat those 
concerns as opportunities to educate and refocus the occupants. HUD 
recognizes that, even then, conflicts may persist and complaints may 
escalate to verbal or physical harassment. In these situations, 
providers should have policies and procedures in place to support 
residents and staff in addressing and resolving conflicts that escalate 
to harassment. These policies should include specific behaviors that 
violate standards of respectful behavior, escalate corrective actions 
if an individual repeats the same violation of standards after 
educational opportunities are offered, and focus corrective actions on 
aggressors who violate project rules, not on the person targeted by the 
harassment. If an occupant continues to harass a transgender 
individual, the provider should consider requiring that the harassing 
occupant stay away from the transgender individual, making changes in 
sleeping arrangements without limiting the freedom of the transgender 
individual, or pursuing other interventions. When appropriate, 
providers may consider expelling harassing residents, or any staff or 
volunteer members who perpetuate discrimination. In no instance, 
however, should any steps taken to address harassment or discrimination 
involve expulsion of harassed occupants.
    Revised paragraph (c) provides for post-admission accommodations, 
where after an individual has been admitted to a temporary, emergency 
shelter, or other building or facility with shared sleeping quarters or 
shared bathing facilities, the provider must take non-discriminatory 
steps that may be necessary and appropriate to address privacy concerns 
raised by all residents or occupants, and, as needed, update its 
admissions, occupancy, and operating policies and procedures. These 
provisions apply to all individuals, regardless of gender identity. If 
an individual requests certain accommodations because of privacy 
concerns, staff may offer those accommodations to that individual but 
may not require that the individual use the accommodations. For 
example, if available, staff may offer that occupant a room, floor, or 
bed that is close to staff workstations or access to rooms, floors, or 
beds set aside for residents with increased vulnerability. At the 
request of an individual, providers may also offer use of a single-
occupant bathroom or provide certain times during the day that a shared 
bathroom can be scheduled by any client with a request to use a private 
bathing facility. If feasible, providers can ensure that toilet and 
shower stalls have locking doors or, at a minimum, curtains to allow 
for modesty and privacy. For shower use, providers may consider 
implementing a schedule for all clients if communal showers are the 
only available type of shower. HUD stresses that all such 
accommodations should be offered only to fulfill the request of 
individuals seeking accommodations for themselves, should be available 
to clients based on a variety of factors that can increase one's 
vulnerability, and should not be restricted for use only by transgender 
or gender nonconforming residents. In no case may a provider's policies 
isolate or segregate transgender or gender nonconforming occupants.
    This final rule removes from Sec.  5.105(d) in the proposed rule 
the language relating to referrals, HUD has removed the provision from 
the proposed rule that permitted housing providers to make a written 
case-by-case determination that a transgender individual should receive 
an alternative accommodation for health and safety reasons. This does 
not preclude the possibility that any occupant may request a referral 
to an alternate project for health and safety reasons, and in such 
cases staff may provide a referral or offer clients a hotel or motel 
voucher.\8\
---------------------------------------------------------------------------

    \8\ In the ESG program, a hotel or motel voucher may be offered 
only if there are no other accessible or appropriate emergency 
shelter beds available for that night.
---------------------------------------------------------------------------

    This final rule redesignates the recordkeeping requirements from 
Sec.  5.106(e) to 5.106(d) and states that providers must document and 
maintain, for a period of 5 years, records of compliance with the 
requirements of this rule regarding establishing or amending policies 
and procedures. This rule also removes the more specific requirements 
related to case-by-case determinations and referrals.
    To strengthen enforcement mechanisms for this rule, HUD is 
publishing in today's Federal Register a notice for public comment, in 
accordance with the Paperwork Reduction Act of 1995, entitled ``Equal 
Access Regardless of Sexual Orientation, Gender Identity, or Marital 
Status for HUD's Community Planning and Development Programs.'' HUD 
proposes to require owners and operators of CPD-funded shelters and 
facilities to post this notice on bulletin boards and in other public 
spaces where information is typically made available.

III. Public Comments Submitted on Proposed Rule and HUD's Responses

A. Overview of Public Comments

    The public comment period for the November 20, 2015, proposed rule 
closed on January 19, 2016. As of the close of the comment period, HUD 
received approximately 184 public comments, in addition to a number of 
mass mailings, from a variety of commenters, including housing 
authorities, direct legal services providers, community development 
agencies, homeless shelters, healthcare providers, social workers, 
clergy, counselors, nonprofit social service providers, and LGBT 
advocacy organizations. The overwhelming majority of comments were 
supportive of the rule. Some commenters, while supporting the rule, 
suggested modifications, and a minority of the commenters opposed the 
rule. Commenters opposing the rule stated that it failed to balance the 
needs of all shelter occupants and lacks flexibility. All comments can 
be viewed at https://www.regulations.gov.
1. Commenters Supporting the Rule
    Many commenters supporting the rule suggested no changes and 
offered a variety of reasons why they supported the rule and why HUD 
should conclude the rulemaking as expeditiously as possible. Commenters 
stated that transgender persons, like all persons, need access to safe 
shelter and housing and that transgender persons are some of the most 
vulnerable members of society. Commenters stated that transgender 
individuals are disproportionately represented in the homeless 
population because of the frequent discrimination they face at home, in 
school, and on the job. Some cited a survey showing that one in five 
transgender or gender nonconforming individuals experienced 
homelessness at some point in their lives because of their transgender 
status. Commenters stated that transgender individuals were at greater 
overall risk of violence, murder, and homelessness-related death than 
people who are not transgender and may also experience mental and 
physical health problems because of the abuse they face.
    Commenters stated that the rule would promote civil rights and 
expanded housing opportunity by addressing the effects of stigma on 
equal access to housing for transgender and

[[Page 64769]]

gender nonconforming persons. Commenters supporting the rule frequently 
stated that the rule would eliminate major barriers to access to safe, 
temporary, emergency shelter and other facilities and programs for 
transgender and gender nonconforming persons, particularly vulnerable 
subgroups within the population that need access to such 
accommodations. Some commenters stated that the rule will yield other 
positive societal outcomes. Many commenters provided extensive data to 
support the rule, including a January 2016 study conducted by the 
Center for American Progress that found, among other things, that only 
30 percent of shelters studied were willing to accommodate transgender 
women in accordance with their gender identity. The commenters stated 
that LGBT providers were twice as likely to be willing to provide a 
shelter-seeker with accommodations in accordance with the individual's 
gender identity; that women's shelters were more likely than mixed-
gender shelters to provide a shelter-seeker with accommodations in 
accordance with the individual's gender identity; and that many 
shelters did not correctly classify shelter-seekers in accordance with 
the individual's gender identity or stated that transgender or gender 
nonconforming individuals would have to submit to invasive medical 
examinations or inquiries, or demonstrate that they had undergone 
surgery, as a prerequisite to obtaining shelter.\9\
---------------------------------------------------------------------------

    \9\ Center for American Progress, Discrimination Against 
Transgender Women Seeking Access to Homeless Shelters (Jan. 7, 
2016), available at https://cdn.americanprogress.org/wp-content/uploads/2016/01/06113001/HomelessTransgender.pdf.
---------------------------------------------------------------------------

    Other commenters supporting HUD's rule stated that the rule is 
needed because the willingness to house transgender people in 
accordance with their gender identity currently varies, depending on 
State laws and shelter type, and HUD's rule would provide some 
consistency. Commenters stated that because 32 States lack explicit 
gender identity protections in housing, HUD's rule will help ensure 
equal access to shelters nationwide for transgender and gender 
nonconforming individuals. Commenters said that even in jurisdictions 
with express protections for transgender individuals, discriminatory 
practices still persist. Commenters stated that HUD's rule is in step 
with recent Federal case law holding that discrimination on the basis 
of sexual orientation and gender identity constitutes unlawful 
discrimination on the ``basis of sex,'' in violation of Title VII of 
the Civil Rights Act and Title IX of the Education Amendments of 1972.
2. Comments Opposing the Rule
    Commenters opposing the rule provided many reasons for their 
opposition but the primary reason concerned the safety of 
nontransgender individuals in a shelter. Commenters stated that the 
rule should not open female, single-sex spaces to individuals who were 
born male, citing their fear that individuals could deliberately 
misrepresent their gender identities and compromise the privacy or 
safety of vulnerable women and children. Commenters stated that there 
is a risk of causing female survivors of male-perpetrated domestic or 
sexual violence, who are disproportionately represented in the homeless 
population and shelters, to feel unsafe. Commenters said the rule does 
not respect legitimate safety and privacy concerns of biological women, 
and that the rule treats women's fear of being assaulted in a shelter 
as unreasonable ``bigotry.'' Commenters stated that the rule should 
require providers to create segregated facilities for transgender 
individuals, rather than placing individuals into male or female 
facilities that correspond to the individual's gender identity. 
Commenters stated that transgender men are also vulnerable to assault 
in shelters. Several commenters opposing the rule cited to articles 
recounting the stories of individuals who had been raped in shelters. A 
commenter stated that it is untrue that transgender women can be safe 
only in a women's shelter. Commenters stated that the rule must balance 
the various needs, perspectives, personal histories, and expectations 
of privacy of both transgender individuals and other shelter seekers. 
Commenters stated that the rule should provide equal consideration to 
the health and safety concerns of transgender and nontransgender 
individuals and guidelines on what constitutes threats to health and 
safety for transgender and nontransgender individuals.
3. Responses to Comments in Support and Opposition
    HUD appreciates all of the comments offered in response to HUD's 
proposed rule. Comments supporting the rule as well as comments 
opposing the rule gave HUD much to consider in the development of this 
final rule. While HUD is proceeding with this rulemaking, HUD is making 
the changes highlighted in Section II of this preamble.

B. Significant Public Comments and HUD's Responses

    This section presents significant issues raised by commenters and 
HUD's responses to these comments. The issues presented in this section 
highlight changes requested by commenters, and questions about or 
requests for clarifications about certain provisions of the rule.
    Comment: Commenters stated that the rule exceeds HUD's current 
statutory mandate because Congress has not given HUD the authority to 
prohibit discrimination based on gender identity. Commenters stated 
that the rule's definitions of ``gender identity'' and ``perceived 
gender identity'' are overbroad and exceed HUD's authority by creating 
a new protected class and that HUD failed to specify the basis for this 
prohibition of discrimination.
    HUD Response: The rule creates additional program requirements to 
ensure equal access for transgender and gender nonconforming persons, 
in accordance with their gender identity, in shelters, buildings, 
facilities, and programs funded in whole or in part by CPD. The 
creation of such program requirements is well within the scope of HUD's 
authority. HUD's mission is to create strong, sustainable, inclusive 
communities and quality affordable homes for all. This mission 
encompasses providing shelter for transgender and gender nonconforming 
persons, who have faced significant difficulty in obtaining access to 
shelters, and buildings and facilities that provide shelter. Excluding 
any eligible person from HUD-funded temporary, emergency shelters, 
buildings, facilities, housing, or programs because of that person's 
gender identity or nonconformance with gender stereotypes would 
contravene HUD's responsibility under the Department of Housing and 
Urban Development Act to work to address ``the needs and interests of 
the Nation's communities and of the people who live and work in them.'' 
(See 42 U.S.C. 3531.) Congress has repeatedly charged HUD with serving 
the existing housing needs of all Americans.\10\
---------------------------------------------------------------------------

    \10\ See section 2 of the Housing Act of 1949 (42 U.S.C. 1441); 
section 2 of the Housing and Urban Development Act of 1968 (12 
U.S.C. 1701t), sections 101 and 102 of the Cranston-Gonzalez 
National Affordable Housing Act (42 U.S.C. 12701-702), and section 
2(b) of the Housing and Community Development Act of 1974 (42 U.S.C. 
5301 note).
---------------------------------------------------------------------------

    Congress has not only given HUD this broad mission but also given 
HUD broad authority to fulfill this mission and implement its 
responsibilities through rulemaking. Section 7(d) of the Department of 
Housing and Urban

[[Page 64770]]

Development Act specifically states that the Secretary ``may make such 
rules and regulations as may be necessary to carry out his functions, 
powers, and duties.'' Moreover, as discussed in the preamble to HUD's 
2012 Equal Access Rule and as discussed in greater detail in response 
to the following comment, HUD is charged with administering and 
enforcing the Fair Housing Act, which prohibits discrimination on the 
basis of protected characteristics, including sex. Discrimination 
because of gender identity is covered within the Fair Housing Act's 
prohibition of sex discrimination. In 2010, HUD issued a memorandum 
recognizing that sex discrimination includes discrimination because of 
gender identity. In 2012, the Equal Employment Opportunity Commission 
(EEOC) reached the same conclusion with regard to gender identity 
claims, ``clarifying that claims of discrimination based on transgender 
status, also referred to as claims of discrimination based on gender 
identity, are cognizable under Title VII's sex discrimination 
prohibition.'' \11\ Following the EEOC's decision, the U.S. Attorney 
General also concluded that:
---------------------------------------------------------------------------

    \11\ Macy v. Dept. of Justice, No. 0120120821, 2012 EEOPUB LEXIS 
1181, *13 (EEOC Apr. 20, 2012); see also Lusardi v. Dept. of the 
Army, No. 0120133395, 2015 EEOPUB LEXIS 896, *17 (EEOC Apr. 1, 
2015).

the best reading of Title VII's prohibition of sex discrimination is 
that it encompasses discrimination based on gender identity, 
including transgender status. The most straightforward reading of 
Title VII is that discrimination ``because of . . . sex'' includes 
discrimination because an employee's gender identification is as a 
member of a particular sex, or because the employee is 
transitioning, or has transitioned, to another sex.\12\
---------------------------------------------------------------------------

    \12\ Attorney General Memorandum, Treatment of Transgender 
Employment Discrimination Claims Under Title VII of the Civil Rights 
Act of 1964 (Dec. 15, 2014), posted at https://www.justice.gov/file/188671/download. Similarly, the Office of Personnel Management 
revised its nondiscrimination regulations to make clear that sex 
discrimination under Title VII includes discrimination based on 
gender identity. See, e.g., 5 CFR 300.102-300.103; see also OFCCP 
Directive 2014-02, Gender Identity and Sex Discrimination (Aug. 19, 
2014) (stating that discrimination based on gender identity or 
transgender status is discrimination based on sex), posted at https://www.dol.gov/ofccp/regs/compliance/directives/Directive_2014-02_508c.pdf.

    HUD reaffirms its view that discrimination based on gender identity 
is sex discrimination.
    Comment: HUD received comments on sex discrimination under the Fair 
Housing Act and the proposed requirement that individuals be provided 
accommodations in accordance with their gender identity. A commenter 
stated that, while it is helpful that HUD already considers the Fair 
Housing Act's provision against discrimination on the basis of sex to 
cover nonconforming gender expression, it would be helpful to make that 
protection explicit in the new rule.
    HUD Response: HUD does not believe it is necessary to modify the 
proposed regulatory text as the commenter recommends. In Sec.  5.100 of 
the proposed rule, HUD included a definition of ``perceived gender 
identity'' in order to differentiate between actual gender identity and 
perceived gender identity for purposes of this rule and the 2012 Equal 
Access Rule. Under that definition, 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. In the 
final rule, the definition is amended to read as follows: 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 or identified in documents. Because the definition of perceived 
gender identity included in the proposed rule and adopted by this rule 
includes gender expression, Sec.  5.105(a)(2) of the rule addresses the 
commenter's concern that HUD-assisted or -insured housing shall be made 
available without regard to an individual's gender expression. HUD does 
not believe any revision to the text of Sec.  5.105(a)(2) is necessary 
to address this concern. Any suggested amendment to Fair Housing Act 
regulations is outside the scope of this rulemaking.
    Comment: Some commenters stated that the rule should create similar 
equal access to housing policies for transgender or gender 
nonconforming persons in all emergency shelters and facilities. Another 
commenter stated that the Fair Housing Act does not prohibit 
discrimination based on gender identity in shelters. A commenter stated 
that the lack of a law prohibiting discrimination against transgender 
persons in shelters has not stopped rescue missions and other shelter 
providers from meeting the diverse needs of transgender persons in 
crisis.
    HUD Response: While HUD appreciates that commenters want to have 
this rule apply to all emergency shelters, the scope of this rulemaking 
is limited to shelters, other buildings and facilities, and programs 
funded in whole or in part by CPD. CPD is the HUD office that funds 
various types of shelters. While HUD believes that all emergency 
shelters, including those temporary, emergency shelters that are not 
subject to the requirements of the Fair Housing Act and that HUD does 
not fund, should provide equal access in accordance with an 
individual's gender identity, imposing those requirements on all 
emergency shelters is outside the scope of this rulemaking.
    With respect to the commenter's statement about the Fair Housing 
Act, HUD seeks to clarify that, contrary to the commenter's stated 
view, the Fair Housing Act's prohibition of discrimination because of 
sex does include the prohibition of discrimination based on gender 
identity or nonconformance with gender stereotypes, which includes 
discrimination against an individual having a gender identity that does 
not conform to an individual's sex assigned at birth. While HUD 
disagrees with the commenter's broad statement that there is no law 
prohibiting discrimination based on gender identity in shelters, HUD 
agrees that it is beneficial for all shelters, including rescue 
missions, to continue to provide accommodation and services to 
transgender persons.
    Comment: A commenter sought clarity regarding the application of 
the Fair Housing Act to shelters. The commenter asserted that the Fair 
Housing Act does not apply to homeless shelters because, in the 
commenter's view, they are not ``dwellings'' covered under the Fair 
Housing Act. The commenter stated that the term ``dwelling'' is not 
well-defined in case law, that emergency shelters are not dwellings 
under the Act; and that the prohibitions of section 3604 of the Fair 
Housing Act do not apply to ``free'' shelters and similar facilities 
because, in the commenter's view, such prohibitions only apply to 
housing that is for sale or rental. The commenter stated that, if HUD 
adopted a statement that the Fair Housing Act does not apply to 
homeless shelters, such adoption would ``strengthen fair housing and 
mitigate confusion and misinterpretation among providers, fair-housing 
agencies, and shelter guests.''
    HUD Response: The commenter misunderstands HUD's statement about 
emergency shelters and the coverage of the Fair Housing Act. Contrary 
to the commenter's assertion, HUD does not categorically exclude 
temporary, emergency shelters providing short-term housing 
accommodations from coverage under the Fair Housing Act. In fact, HUD's 
established policy and regulations explicitly identify homeless 
shelters and other short-term or transient housing as ``dwellings'' 
subject

[[Page 64771]]

to the Act.\13\ The Act defines ``dwelling'' as ``any building, 
structure, or portion thereof which is occupied as, or designed or 
intended for occupancy as, a residence by one or more families'' and 
includes vacant land.\14\ Thus, shelters generally are covered within 
the definition of dwelling, and many courts have held shelters and 
other short-term accommodations to be dwellings covered by the Fair 
Housing Act.\15\ However, some shelters may not qualify as a 
``dwelling'' under the Fair Housing Act, and, therefore, HUD has 
endorsed the following multiple factor analysis for determining whether 
a shelter is a covered dwelling for purposes of the Fair Housing Act: 
(1) Length of stay; (2) whether the rental rate for the unit will be 
calculated based on a daily, weekly, monthly, or yearly basis; (3) 
whether the terms and length of occupancy will be established through a 
lease or other written agreement; (4) what amenities will be included 
inside the unit, including kitchen facilities; (5) how the purpose of 
the property will be marketed to the public; (6) whether the resident 
possesses the right to return to the property; and (7) whether the 
resident has anywhere else to which to return.\16\
---------------------------------------------------------------------------

    \13\ See, e.g., Final Report of HUD Review of Model Building 
Codes, 65 FR 15740, 15746, 15747 (March 23, 2000) (``HUD specified 
as dwellings covered by the Act . . . such short-term housing as . . 
. homeless shelters.''). See also, e.g., 24 CFR 100.201 (the 
definition of ``dwelling units'' includes, e.g., sleeping 
accommodations in shelters intended for occupancy as a residence for 
homeless persons); Supplement to Notice of Fair Housing 
Accessibility Guidelines: Questions and Answers about the 
Guidelines, 56 FR 9472, 9500 (March 6, 1991) (same); Implementation 
of the Fair Housing Amendments Act, 54 FR 3232, 3245 (January 23, 
1989) (same).
    \14\ 42 U.S.C. 3602(b).
    \15\ See, e.g., Schwartz v. City of Treasure Island, 544 F.3d 
1201, 1215 (11th Cir. 2008) (halfway houses for recovering addicts); 
Lakeside Resort Enter. v. Bd. of Supervisors of Palmyra Twp., 455 
F.3d 154, 158-60 (3rd Cir. 2006) (treatment facility); Turning 
Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir. 1996) 
(homeless shelter); Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096, 
1103 (3rd Cir. 1996) (nursing home); U.S. v. Columbus Country Club, 
915 F.2d 877, 881 (3rd Cir. 1990) (summer bungalows); Connecticut 
Hosp. v. City of New London, 129 F. Supp. 2d 123, 135 (D. Conn. 
2001) (halfway houses for substance abuse treatment); Lauer Farms, 
Inc. v. Waushara County Board of Adjustment, 986 F. Supp. 544, 557, 
559 (E.D. Wis. 1997) (migrant farmworker housing); Louisiana Acorn 
Fair Hous. v. Quarter House, 952 F.Supp. 352, 359-60 (E.D. La. 1997) 
(time-share unit); Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D. 
Ill. 1995) (homeless shelter); Baxter v. City of Belleville, 720 F. 
Supp. 720, 731 (S.D. Ill. 1989) (residence for terminally ill); U.S. 
v. Hughes Mem'l Home, 396 F. Supp. 544, 549 (W.D. Va. 1975) (home 
for needy children).
    \16\ See 65 FR at 15746.
---------------------------------------------------------------------------

    Determining whether a particular emergency shelter is a covered 
dwelling for purposes of the Fair Housing Act requires application of 
the multiple factors to its operation. No single factor is 
determinative. For instance, the absence of a rental fee or lease does 
not disqualify an accommodation from coverage under the Fair Housing 
Act.\17\ Further, contrary to the commenter's view, section 3604 of the 
Fair Housing Act does not only apply to discriminatory conduct that 
involves a sale or rental. The Fair Housing Act has no such limitation. 
In addition to prohibitions against refusals ``to sell or rent after 
making of a bona fide offer'' and ``to refuse to negotiate for the sale 
or rental,'' section 3604(a) also prohibits ``otherwise mak[ing] 
unavailable or deny[ing]'' a dwelling to any person protected under the 
Fair Housing Act.\18\ HUD and courts have long made clear that a 
variety of conduct that does not involve sale or rental can make 
housing otherwise unavailable.\19\ Similarly, section 3604(b) is not 
limited to conduct involving a sale or rental, as it also prohibits 
discrimination in the ``provision of services or facilities in 
connection'' with a dwelling.\20\ HUD strongly disagrees that adopting 
a broad statement that the Fair Housing Act does not apply to homeless 
shelters would strengthen fair housing. HUD also emphasizes that this 
rule covers CPD-funded shelters and other buildings and facilities 
regardless of whether the facility qualifies as a dwelling under the 
Fair Housing Act.
---------------------------------------------------------------------------

    \17\ See, e.g., Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D. 
Ill. 1995) (homeless shelter did not charge rent).
    \18\ 42 U.S.C. 3604(a).
    \19\ See, e.g., Ojo v. Farmers Grp., Inc., 600 F.3d 1205, 1208 
(9th Cir. 2010) (discriminatory pricing and denial of homeowners 
insurance violates 804(a) and (b)); Nationwide Mut. Ins. Co. v. 
Cisneros, 52 F.3d 1351, 1357-58 (6th Cir. 1995) (same); Keith v. 
Volpe, 858 F.2d 467, 482-484 (9th Cir. 1988) (municipal's refusal to 
permit low-income housing violates 804(a)). See also, e.g., 24 CFR 
100.70(d)(4) (refusing to provide municipal services or property or 
hazard insurance because of protected class).
    \20\ 42 U.S.C. 3604(b); see, e.g., 24 CFR 100.65(b)(2) (failing 
or delaying maintenance because of protected class).
---------------------------------------------------------------------------

    Comment: Some commenters stated that the proposed rule is 
inconsistent with the Fair Housing Act, which forbids sex 
discrimination as to covered dwellings but not as to free, temporary, 
emergency shelters or other buildings or facilities, and which, 
therefore, evinces the intent of Congress to permit single-sex housing 
in the latter case. Commenters expressed concern that the decision by 
Congress to allow single-sex facilities that do not qualify as 
dwellings would be unenforceable if this rule is implemented as 
proposed; for example, if a women's shelter were required to admit a 
biological man based merely upon his assertion that he ``identifies 
as'' a woman, or if a men's shelter were required to admit a biological 
woman based merely upon her assertion that she ``identifies as'' a man.
    HUD Response: As previously stated, the rule is not inconsistent 
with the Fair Housing Act. While the Fair Housing Act includes 
nondiscrimination requirements applicable to dwellings covered by the 
Act, it does not prohibit HUD from establishing additional program 
requirements through rulemaking. Temporary, emergency shelters and 
other buildings and facilities with physical limitations or 
configurations that require shared sleeping quarters or bathing 
facilities and that do not qualify as dwellings under the Fair Housing 
Act may operate single-sex shelters unless doing so would violate some 
other Federal, State, or local law. Under this rule, such shelters or 
other buildings and facilities funded by programs administered by CPD 
\21\ must determine placement in such single-sex facilities in 
accordance with each applicant's or occupant's gender identity, 
regardless of sex assigned at birth or other factors. As noted in 
response to a prior comment, HUD's establishment of programmatic 
requirements for temporary, emergency shelters and other buildings and 
facilities funded through HUD programs is well within HUD's statutory 
authority and an important part of HUD's mission in ensuring access to 
housing for all Americans. Contrary to the public comment that suggests 
what Congress's intent was in creating single-sex facilities, HUD does 
not opine on Congress's intent behind permitting single-sex facilities, 
but does make clear in this rule that, for purposes of determining 
placement in a single-sex facility, placement should be made consistent 
with an individual's gender identity. This rule does not attempt to 
interpret or define sex.
---------------------------------------------------------------------------

    \21\ HUD provided similar guidance to recipients and 
subrecipients that place eligible persons in single-sex temporary, 
emergency shelters or other facilities receiving ESG, CoC, or HOPWA 
funds. See Appropriate Placement for Transgender Persons in Single-
Sex Emergency Shelters and Other Facilities, (Notice: CPD-15-02 
(February 20, 2015)).
---------------------------------------------------------------------------

    Comment: One commenter expressed concern that Congress would see no 
need to enact the Equality Act, a bill that would expressly forbid 
discrimination in housing on the basis of sexual orientation and gender 
identity, once HUD issued a rule prohibiting such discrimination.
    HUD Response: While HUD appreciates the commenter's desire to see 
Congress enact new legislation expanding antidiscrimination

[[Page 64772]]

protections in housing, HUD does not believe the introduction of such 
legislation warrants delaying issuance of this important rule. Because 
many transgender persons are being denied access to temporary, 
emergency shelters and other building and facilities or are being 
placed and served in such shelters in accordance with their sex 
assigned at birth instead of in accordance with their gender identity, 
HUD believes it is necessary to issue this rule at this time to ensure 
that transgender and gender nonconforming persons are accorded equal 
access and are accommodated in accordance with their gender identity in 
programs, shelters, buildings, and facilities assisted by CPD. Given 
that this rulemaking applies only to providers that receive HUD funds 
and not more broadly, HUD does not believe that its rulemaking in this 
important area will impact any broader legislative action that Congress 
may choose to take.
    Comment: Commenters stated that the rule is not based on 
sufficiently exhaustive research and data, such as interviews with 
people not in the LGBT community, and only presents one-sided research 
on the issue of gender identity. A commenter said that while the rule 
notes that many transgender shelter-seekers would choose sleeping on 
the street rather than a shelter for their sex assigned at birth, HUD's 
rule does not address whether biological women would choose to sleep on 
the streets if their only other option were to share sleeping and 
bathing spaces with anatomically biological males who self-identify as 
women. Commenters stated that, before HUD institutes this rule, HUD 
needs more research on what risks placing males in female-only 
facilities will pose to women, and HUD should continue to search for 
solutions for providing safe services for particularly vulnerable males 
and, if vulnerable males must be placed at a women's shelter, female 
clients should be able to sleep, bathe, and use the toilet away from 
biological males.
    HUD Response: As HUD program participants and the public are aware, 
HUD spent considerable time studying this issue. During the development 
of HUD's 2012 Equal Access Rule, commenters requested HUD to address 
the issue of temporary, emergency shelters that contain shared sleeping 
quarters and shared bathing facilities. HUD, however, declined to 
address that issue in the 2012 Equal Access Rule because of the need to 
conduct further research and examination of the issue. During the time 
since the 2012 Equal Access Rule was issued, HUD monitored and reviewed 
its own programs, national research, and other Federal agency policy to 
determine if transgender individuals had sufficient access to 
temporary, emergency shelters or if additional guidance or a national 
policy was warranted. HUD considered the issue not only from the 
perspective of transgender persons and other gender nonconforming 
persons, but also from the perspective of individuals whose sex 
assigned at birth and whose gender identity are the same. HUD has 
learned through its review that all individuals, including transgender 
persons and other gender nonconforming persons, can be safely 
accommodated in shelters and other buildings and facilities in 
accordance with their gender identity. Privacy concerns can be 
addressed through policy adjustments, such as the use of schedules that 
provide equal access to bathing facilities, and modifications to 
facilities, such as the use of privacy screens and, where feasible, the 
installation of single occupant restrooms and bathing facilities. 
Further, the 2016 Center for American Progress study cited in the 
Background section of this preamble revealed that shelters were willing 
to provide transgender women with appropriate shelter only 30 percent 
of the time. Given the 4-year examination of this issue prior to this 
rule and the recent evidence of continued and widespread practices that 
deny access or subject transgender individuals to unequal treatment, 
HUD is ready to address this matter in regulation and believes that 
this final rule sets the right approach.
    Comment: Commenters stated that because the rule requires shelters 
and other programs and services to change their policies and 
procedures, oversight and accountability should be created or 
strengthened. Commenters stated that current lack of oversight within 
the shelter and emergency housing system threatens the lives of 
transgender, gender nonconforming, and intersex people; subjects them 
to violence and degradation without any accountability or protection; 
and violates their basic human rights and the equal protections that 
should be accorded them. Commenters stated that HUD should clarify, in 
the final rule or in another form, how HUD will monitor and enforce the 
CPD Equal Access Rule, including an amendment stating that without 
meaningful monitoring and enforcement as is done for protected groups 
under the Fair Housing Act, the promise of the rule may go unfulfilled. 
Other commenters stated that the system for filing complaints needs to 
be improved, and a complaint filing system needs to be incorporated at 
the local level, where marginalized transgender and gender 
nonconforming individuals seeking shelter have ready access to 
advocates who can assist them. A commenter stated that no organization 
should receive Federal funds without standing proof of compliance.
    HUD Response: HUD agrees that safety, respectful treatment, and 
equal access are critical issues for transgender and gender 
nonconforming individuals, as they are for everyone, and HUD's 
regulations for the ESG program make it clear that all ESG-funded 
emergency shelters, including those with configurations that require 
shared sleeping quarters or shared bathing facilities, have had, and 
continue to have, a responsibility to create a safe environment for all 
occupants, particularly those of special populations (see 24 CFR 
576.400(e)(3)(iii) for more information). Recipients, subrecipients, 
owners, operators, and managers of temporary, emergency shelters and 
other buildings and facilities and providers of services are expected 
to take the steps necessary to comply with this rule and maintain safe 
conditions for all shelter and facility residents and employees. When 
there is a threat to the safety of any resident, HUD expects 
recipients, subrecipients, and shelter or facility owners, operators, 
managers, and providers to take appropriate steps to address such 
threats. Such mitigating steps may include proactive measures to reduce 
risks such as increasing the shelter's security personnel, making 
adjustments to a facility's operating policies and schedules, and 
modifying shelter facilities to provide a single occupant bathing 
facility. HUD has heard from providers that adjusting a facility's 
operating policies and schedules is usually sufficient and does not 
cost additional funds, and thus HUD encourages agencies to start with 
this modification. HUD also notes that, for additional modifications 
that are necessary, some funded facilities, such as those under the ESG 
program, can use ESG funds to modify the shelter facility or provide 
additional security.
    HUD believes that by requiring equal access for transgender 
individuals and other gender nonconforming persons in this regulation, 
HUD will be better able to monitor and enforce actions required to 
ensure equal access in temporary, emergency and other CPD-assisted 
buildings, facilities, and programs. Section 5.106(b) requires that 
recipients, subrecipients, operators, managers, and providers of 
temporary, emergency shelters, other buildings and facilities, 
programs, and services update their policies, if not already updated, 
to comply with providing equal access,

[[Page 64773]]

which HUD can review when monitoring its recipients', subrecipients', 
and providers' compliance with the new requirements established by this 
final rule. In addition, Sec.  5.106(d) requires that providers must 
document and maintain records of compliance with the requirements in 
Sec.  5.106(b) of this rule for a period of 5 years.
    Transgender and other gender nonconforming persons are encouraged 
to file complaints if they have been denied equal access to temporary, 
emergency shelters, other buildings and facilities, programs, or 
services in accordance with their gender identity. Individuals may file 
complaints of discrimination based on gender identity by calling 1-800-
669-9777 (toll-free) or online at https://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint. 
Persons who are deaf or hard of hearing or who have speech impairments 
may file a complaint via TTY by calling the Federal Relay Service at 1-
800-877-8339 (toll-free).
    Transgender and other gender nonconforming persons are encouraged 
to file complaints with HUD's CPD program office if they have been 
denied equal access to any services, accommodations, or benefits under 
CPD programs. Whenever a recipient (including subrecipients) of HUD 
funds fails or refuses to comply with program requirements, whether in 
statute or regulation, such failure or refusal shall constitute a 
violation of the requirements under the program in which the recipient 
is operating, and the recipient is subject to all sanctions and 
penalties for violation of program requirements, as provided for under 
the applicable program. Sanctions may include the withholding of HUD 
assistance. In addition, HUD may pursue an enforcement action when the 
Fair Housing Act is implicated. A housing provider who is found to have 
violated the Fair Housing Act may be liable for actual damages, 
injunctive and other equitable relief, civil penalties, and attorney's 
fees. As previously discussed, along with this rule, HUD is publishing 
in today's Federal Register for public comment a notice entitled 
``Equal Access Regardless of Sexual Orientation, Gender Identity, or 
Marital Status for HUD's Community Planning and Development Programs'' 
that HUD proposes to require owners or operators of CPD-funded programs 
and facilities to post on bulletin boards and in other public spaces.
    Comment: A commenter stated that the rule may place a significant 
burden upon the associational and religious liberty of beneficiaries 
and other stakeholders; for example, by requiring residents to share 
facilities with opposite-sex adults where their religions prohibit 
that.
    HUD Response: The exclusion of an individual or family from CPD-
funded shelter because the individual is transgender or the family has 
one or more transgender members is inconsistent with HUD's mission to 
ensure decent housing and a suitable living environment for all. It is 
equally inappropriate to isolate or ostracize individuals because their 
gender identity is not the same as their sex assigned at birth. It is 
incumbent on HUD to ensure that the regulations governing its housing 
programs make clear that such arbitrary exclusion, isolation, and 
ostracism will not be tolerated in HUD-assisted housing and shelters. 
Moreover, as noted in response to prior comments, in dwellings covered 
by the Fair Housing Act, exclusion or unequal treatment based on an 
individual's gender identity or nonconformance with gender stereotypes 
is discrimination because of sex and violates the Act. HUD would not 
tolerate denial of access, isolation, or ostracism on the basis of 
race, color, national origin, or disability relating to one shelter 
resident in order to accommodate the religious views of another shelter 
resident. The same is true with respect to the treatment of transgender 
and other gender nonconforming persons.
    Faith-based organizations have long been involved in HUD's programs 
and provide many valuable services to low-income populations served by 
HUD. It is HUD's hope that faith-based organizations will continue to 
actively participate in HUD's CPD programs and provide services to 
transgender persons in accordance with the requirements set in this 
rule.
    Comment: A commenter stated that the rule does not reflect the 
reality of providing shelter to people in challenging environments and 
with limited resources. Commenters stated that HUD should consider the 
following: (1) Providing additional resources to shelters to help them 
meet the privacy, health, and safety needs of clients; (2) examining 
what scope of client interview is permissible to enable staff to 
identify an attempted misuse of the proposed mandate without fear of 
legal challenge; (3) determining whether staff would be placed in an 
untenable position of pressure to accede to a request or demand 
contrary to their situational awareness and the reasonable concerns of 
other (often traumatized) shelter clients; (4) examining how a provider 
would gather timely and appropriate information that it believes is 
relevant to the actual situation but not necessarily a matter of health 
or safety; (5) determining whether the privacy concerns of other 
clients are legitimate criteria for placement; (6) examining how 
single-sex women shelter providers will reconcile differences between 
the Violence Against Women Act's (VAWA) ``due consideration'' approach 
for single-sex housing and the mandate in this rule, and how shelter 
providers will be expected to reconcile differences between the mandate 
of this regulation and the often conflicting regulations and guidance 
provided by other Federal, State and local housing agencies. A 
commenter said that the proposed rule will increase guesswork and the 
paperwork burden surrounding client placement and expressed concern 
about the legal repercussions to a provider for denying placement where 
there is a question as to ``valid'' gender identity.
    HUD Response: HUD appreciates the items for consideration raised by 
the commenters and these were the very issues that HUD did, in fact, 
take into consideration before issuing this CPD Equal Access Rule, more 
than 4 years after the 2012 Equal Access Rule. In addition, before 
commencing this rulemaking, on February 20, 2015, CPD released Notice 
CPD-015-02, ``Appropriate Placement for Transgender Persons in Single-
Sex Emergency Shelters and Other Facilities,'' applicable to CPD's 
HOPWA, ESG, and CoC programs. This notice provides that HUD expects 
recipients, subrecipients, and providers to accommodate individuals in 
accordance with the individual's gender identity.\22\ HUD has had over 
1 year of experience with this guidance in place and such experience 
further informed HUD in development of the final rule. There is no 
reason to assume that transgender persons pose risks to health or 
safety. Indeed, experience under this guidance has shown that 
transgender and other gender nonconforming persons can be and have been 
safely accommodated in accordance with their gender identity in single-
sex facilities without the types of disruptions feared by the 
commenter.
---------------------------------------------------------------------------

    \22\ See notice at https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.
---------------------------------------------------------------------------

    In response to the commenter's concern about the extent of 
questioning and investigation that shelter staff may perform prior to 
determining appropriate accommodations for

[[Page 64774]]

transgender and other gender nonconforming persons, HUD has made 
modifications to the proposed rule at this final rule stage. 
Specifically, in Sec.  5.106(b) of this final rule, HUD makes clear 
that it is inappropriate to subject individuals seeking accommodations 
to unnecessary, intrusive questioning about their gender identity or to 
ask them to provide anatomical information or documentary, physical, or 
medical evidence of their gender identity. Examples of unnecessary, 
intrusive questioning would be asking about surgeries, anatomy, and any 
other topics that are not necessary for placing and serving a client in 
the facility. Consistent with the approach taken by other Federal 
agencies, HUD has determined that the most appropriate way for shelter 
staff to determine an individual's gender identity for purposes of a 
placement decision is to rely on the individual's self-identification 
of gender identity. As for the comment about how to ``reconcile 
differences between the VAWA's `due consideration' approach to single-
sex housing,'' HUD reviewed DOJ's guidance regarding the VAWA's 
nondiscrimination provision and does not see a conflict that needs to 
be reconciled.
    HUD recognizes that emergency shelters are not the ideal placement 
for anyone, and that is why HUD is encouraging communities to move 
individuals and families into permanent housing as quickly as possible. 
In the meantime, HUD recognizes that there are security risks in 
operating shelters, but the obligation to provide for safety and 
security is not new, and the denial of equal access cannot be justified 
based on unfounded concerns about safety or security. Under this final 
rule, policies and procedures for CPD programs covered by this rule 
will have to include, if appropriate, provisions on nondiscriminatory 
measures to ensure the health, safety, security, and privacy of all 
occupants and staff in accordance with applicable Federal laws and 
regulations. Further, under this rule, recipients, subrecipients, 
owners, operators, managers, and providers of 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 must take nondiscriminatory steps that may be 
necessary and appropriate to address privacy concerns raised by 
residents or occupants, and, as needed, update their admissions, 
occupancy, and operating policies and procedures. It would be 
appropriate for a recipient, subrecipient, owner, operator, manager, or 
provider to update its operating policies and procedures to reflect 
nondiscriminatory steps to address privacy concerns if providers 
repeatedly receive the same request from occupants that can be 
accommodated in the same manner. However, an update to their policies 
and procedures in order to address rare case-specific situations may 
not be necessary, although an exception to policies and procedures may 
be appropriate in such circumstances to avoid infringement on an 
individual's privacy concern. HUD believes that this final rule 
clarifies compliance and greatly reduces responsibility of the staff to 
determine gender identity for the purposes of placement.
    Comment: A commenter stated that the proposed paperwork and record 
retention requirements of the proposed rule distract from the prime 
objective of shelters, disincentivizes participation in HUD programs, 
and make meeting the overarching objective of ensuring access to 
shelter for all more costly and burdensome.
    HUD Response: This final rule eliminates most of the provisions of 
the proposed rule that required recordkeeping requirements, and as a 
result HUD has removed most of the recordkeeping requirements in this 
final rule. The only recordkeeping requirement that remains is the 
requirement to maintain records of policies and procedures to ensure 
that equal access is provided, and individuals are accommodated, in 
accordance with their gender identity. This requirement will aid HUD in 
monitoring compliance with this rule and taking enforcement action 
where needed.
    Comment: Commenters expressed support for the rule's definitions of 
gender identity and perceived gender identity. A commenter said the 
original definition of gender identity encouraged discrimination by 
implying or directly giving providers the ability to determine gender 
through discriminatory perceptions based on gender stereotypes. A 
commenter stated that ``transgender women are women and transgender men 
are men.'' Commenters stated that the rule's separation of definitions 
of actual and perceived gender identity will help to ensure that LGBT 
individuals receive equal access to shelter, for example, by clarifying 
concepts that may be unfamiliar to grant recipients.
    HUD Response: HUD appreciates the commenter's support for the 
revised definition and agrees that it is important to differentiate 
between actual gender identity and perceived gender identity. As 
discussed earlier, the definition of ``perceived gender identity'' in 
this final rule includes a perception based on documents, to make clear 
that the identification of gender or sex on an individual's identity 
document may be different than a person's actual gender identity, and 
that the perceived gender identity of an individual based on 
information on the documents may not be the basis of discrimination 
against that individual.
    Comment: Commenters stated that HUD's rule should allow persons to 
determine gender identity and expression free from harassment and 
violence, whether actual or perceived gender. Commenters stated that 
they appreciated that the definition of ``perceived gender identity'' 
covers discrimination based on gender expression, and they urged HUD to 
include consistent clarifying language to this effect in both the 
preamble to the final rule and in training and technical assistance for 
grantees.
    HUD Response: As HUD noted in a prior response, by incorporating 
gender expression into the definition of perceived gender identity, the 
final rule requires recipients, subrecipients, and providers to make 
shelter available without regard to gender expression. HUD will take 
the commenter's recommendations into account when developing training 
and technical assistance materials.
    Comment: Commenters stated their belief that self-reported gender 
identity should be afforded a lesser status than binary biological sex, 
because gender is subjective, mutable, and theoretical, whereas 
biological sex is objective, immutable, and demonstrable. Commenters 
stated that research demonstrates a lack of scientific consensus as to 
transgender status or that gender fluidity is a mental illness. 
Commenters stated that the rule contravenes the Constitution's 
recognition of a ``fundamental, irreducible reproductive asymmetry'' 
between women and men. Commenters stated that the rule should require 
the use of verifiable criteria, e.g., medical history, to establish the 
authenticity of a self-identified transgender individual. A commenter 
stated that the rule puts ``staff in the position of adjudicating who 
is a (transgender) woman and who is not,'' and that this is unfair to 
such staff and the populations they serve. A commenter stated that 
biological sex is relevant to decisions about single-sex housing and 
shared sleeping and bathing areas. Another commenter said HUD conflates 
the definitions of ``sex,'' and ``gender,'' and suggested that HUD 
define ``sex'' as the actual biological

[[Page 64775]]

maleness or femaleness of a person and ``gender'' as the cultural sex-
role, although the commenter stated that even this revision is still 
problematic because there are no universally agreed upon attributes for 
what constitutes particular roles.
    Other commenters stated that sex is not ``assigned'' at birth, but 
is presented, observed, and recorded, and commenters recommended that 
the rule refer to the sex ``presented'' at birth rather than the sex 
``assigned'' at birth. This commenter also supported the view that 
``perceived'' gender identity is problematic, as perception varies from 
individual to individual, and asked how a provider is expected to 
perceive somebody else's identity. The commenter suggested that the 
rule state that perceived gender identity means the social sex-role the 
person is assumed to have an affinity for based on exhibited 
stereotyped behaviors commonly acknowledged to be associated with being 
either male or female and/or the actual biological sex of the person, 
but stated that there still needs to be some objective criteria for the 
definition to be of any real use, but using stereotyped behaviors in 
place of biological sex is problematic. A commenter said that the rule 
also does not define ``transgender'' or explain how a provider could 
distinguish between those who are sincere in their sex-role identity 
and those who are not. Further, the commenter said that because this 
rule enshrines expressions and characteristics as a legal sex category, 
it will negatively affect other laws concerning women's rights, and the 
definition of ``woman'' should be based on biological sex.
    HUD Response: HUD appreciates and has considered the suggested 
revisions to the definition of ``gender identity'' offered by 
commenters. However, HUD declines to make the suggested changes at this 
final rule stage. As HUD observed in the 2012 Equal Access Rule, the 
number of suggested revisions to the definition of ``gender identity'' 
highlights a range of differing views among commenters regarding the 
meaning of this term. Consequently, HUD was required to determine which 
definition makes the most sense in this context. As noted earlier in 
this preamble, in the 2012 Equal Access Rule, HUD based its definition 
on the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act 
of 2009, on the basis that both this statute and HUD's policy sought to 
protect LGBT individuals. Subsequently, however, HUD evaluated its 
program recipient practices, reviewed research on discrimination of 
transgender individuals in shelter settings, solicited input on the 
experiences and concerns of both clients and providers, and reviewed 
its own guidance, as well as several other Federal agencies' gender-
identity nondiscrimination policies. HUD found helpful, for instance, 
that the DOJ's guidance states that a program recipient ``should ask a 
transgender beneficiary which group or service the beneficiary wishes 
to join,'' but may not ``ask questions about the beneficiary's anatomy 
or medical history or make burdensome demands for identity documents.'' 
As noted in the proposed rule, HUD determined, in light of its review, 
that it would be more effective for the specific purpose of ensuring 
equal access to HUD programs to separate the definitions of actual and 
perceived gender identity and to require that any gender identity 
determinations in the context of CPD programs be based on an 
individual's self-identification. That does not mean that staff workers 
conducting intake procedures must account for perceived gender identity 
in determining placement. In fact, it means that staff workers must not 
use perceived gender identity and must only place an individual based 
on the individual's actual gender identity, without additional 
questions about anatomy, medical history, or identification documents. 
Transgender and gender nonconforming persons must not be placed based 
on perceived gender identity when it is in conflict with an 
individual's self-identified gender identity. This approach is 
consistent with current research, with HUD's existing guidance, and 
with other Federal agency policy. This approach does not require the 
provider to make any determination as to an individual's sincerity with 
respect to their gender.
    In response to the comment with regard to this rule's impact on a 
``legal sex category,'' this rule does not provide a definition of 
``woman'' or ``sex.'' In this rule, HUD notes that gender identity--and 
whether a person identifies with their sex assigned at birth or not--is 
a component of sex. As such, HUD believes it was important to recognize 
the role of gender identity in its 2012 Equal Access Rule and to 
provide further guidance on how individuals are treated based on gender 
identity in this rule. In view of its role in ensuring access to 
housing for all Americans, HUD could not countenance denying equal 
access to shelter on the basis of gender identity, just as it could not 
countenance such treatment for characteristics such as race, color, 
national origin, or disability. As previously noted, HUD does not 
believe it is appropriate to isolate, ostracize, or treat people 
differently because of the way others, such as other shelter residents 
or shelter employees, view them.
    Given the comments requesting guidance on the efforts a provider 
may use to identify an individual's gender identity, HUD revised the 
proposed rule, in this final rule, to provide clarity on this point. 
Specifically, HUD has included a provision in Sec.  5.106(b) that makes 
clear that individuals may not be asked to answer intrusive questions, 
provide anatomical information, or provide documentary, physical, or 
medical evidence of the individual's gender identity. HUD notes that 
documents such as identification documents may list an individual's sex 
assigned at birth and not an individual's gender identity. Thus, an 
identification card or other document is not dispositive of an 
individual's gender identity. By including language that prohibits 
intrusive questioning or requests for anatomical information, 
documentation, or physical or medical evidence, HUD makes clear to 
providers, owners, operators, and managers that an individual's self-
identification of gender identity is sufficient evidence of the 
individual's gender identity for purposes of making a decision 
regarding admission, placement, accommodation, placement, or services 
under this final rule. While documentation of gender identity may not 
be required for purposes of establishing an individual's gender 
identity or determining eligibility for a program, HUD recognizes that 
an individual may need to provide documentation of identity in order to 
apply for certain types of assistance, such as healthcare, Social 
Security benefits, or employment. In instances where the provider 
receives documentation and that documentation states a different gender 
marker than was identified by the individual as their gender identity, 
the provider must continue to serve the individual in accordance with 
their self-identified gender identity.
    As previously stated, it is not uncommon for transgender persons to 
have identification documents that indicate the individual's sex 
assigned at birth instead of the individual's gender identity, so 
identity documents should not be viewed as evidence contesting an 
individual's self-identification of gender identity.
    Comment: A commenter stated that the rule recognizes that some 
people do not identify as either male or female and that such persons 
must be permitted to choose which option is most consistent

[[Page 64776]]

with their gender when accessing single-sex shelters or other buildings 
or facilities or services. Commenters asked HUD to clarify how the rule 
applies to people who identify in nonbinary, gender-fluid, intersex, or 
gender nonconforming terms. Commenters stated that nonbinary 
individuals constitute a vulnerable subgroup within the transgender 
population, particularly because their identity may be less familiar to 
program staff, but they are nevertheless entitled to the same 
acceptance and respect for their gender identities as are others. A 
commenter said the medical community has widely recognized the 
importance of recognizing gender identities other than male or female, 
or nonbinary genders, and providing those with nonbinary genders equal 
access to services. Commenters stated that an individual whose gender 
identity is neither male nor female should have the right to state 
which program or facility is most consistent with their identity and 
asked HUD to include language to this effect in the preamble to the 
final rule. The commenters also asked HUD to discuss in its training 
and technical assistance for grantees the rule's application to persons 
who are gender nonconforming or who do not identify as male or female, 
in training and technical assistance for grantees. Commenters stated 
that the rule should expressly state that refusing service or access to 
individuals who are gender nonconforming or who do not identify as 
either male or female violates the proposed rule. Commenters stated 
that when only male or female accommodations are available, equal 
access requires that persons who do not identify as either male or 
female must be permitted to determine which option is most consistent 
with their gender identity. A commenter stated that HUD should amend 
its forms and databases to permit individuals to identify as something 
other than male or female and to instruct program staff that 
individuals must be permitted to self-identify their own gender. 
Another commenter said that the rule does not mention intersex persons 
or persons with a difference of sexual development (DSD) and, 
consistent with current trends in case law, coverage of the rule should 
be expanded to include persons with intersex conditions and DSD.
    Another commenter said that while it understands that the proposed 
regulations are requiring nonbinary users to choose between facilities 
for the two majority genders, the commenter believes that, over the 
long term, single-sex systems are going to have to become integrated if 
they are to cost-effectively serve an expanding variety of gender 
identities. This commenter asked HUD to start conceptualizing a new 
system that can comfortably accommodate nonbinary users. A commenter 
said HUD should encourage recipients to undertake the following: The 
development and creation of all-gender spaces; the creation of 
policies, practices, and staffing structures that would allow programs 
and facilities to be safely designated as all-gender; and the creation 
of practices and facility upgrades that afford all residents increased 
personal privacy.
    HUD Response: HUD appreciates the comments regarding individuals 
who do not identify as either male or female and individuals who are 
nonbinary, gender-fluid, intersex, or gender nonconforming. While HUD 
did not reference each of these groups in its proposed rule or the 
regulatory text of this final rule, HUD's use of terminology is not 
intended to exclude people because of the words they use to describe 
themselves. HUD recognizes that there is more work to do in this area 
to ensure that, to the greatest extent possible, all individuals are 
treated equally and appropriately accommodated in HUD-funded programs, 
shelters, services, and other facilities. In circumstances where an 
individual does not identify as male or female and such information is 
relevant to placement and accommodation, the individual should be asked 
the gender with which the individual most closely identifies. In these 
circumstances, the individual is in the best position to specify the 
more appropriate gender-based placement as well as the placement that 
is most likely to be the safest for the individual--either placement 
with males or placement with females.
    While HUD appreciates the suggestions about future actions it may 
take to better accommodate everyone in shelters, HUD declines to 
address these comments in detail as these issues are beyond the scope 
of this rulemaking. HUD will consider these issues for future 
rulemaking. As the commenters suggest, HUD will also consider training 
and guidance for shelter providers, operators, and managers on best 
practices for dealing with individuals who do not identify as male or 
female and individuals who are nonbinary, intersex, or gender 
nonconforming. HUD agrees that individuals in these groups may be 
particularly vulnerable, and that training and technical assistance may 
be helpful in addressing the needs of these populations of shelter 
residents.
    Comment: A commenter stated that HUD should not follow the approach 
taken by DOJ in implementation of the Prison Rape Elimination Act 
because DOJ regulations included provisions allowing correctional 
agencies broad discretion to make ``case-by-case'' decisions regarding 
whether placement in a male or female facility would ensure the 
individual's health and safety. The commenter stated that while DOJ 
explained in its rule's preamble that ``an agency may not simply assign 
the inmate to a facility based on genital status,'' few, if any, State 
agencies are complying with this provision, with the result that 
agencies are maintaining their prior practices of automatically placing 
individuals exclusively based on their genital anatomy, even when 
nominally adopting policy language that mirrors the Federal rule. The 
commenter stated that such discretion is not appropriate or permissible 
under regulations implementing Federal nondiscrimination requirements. 
Another commenter stated that the most essential element of a 
successful nondiscrimination policy is the basic rule that housing must 
be based on a person's self-identified gender, not on their sex 
assigned at birth. A commenter stated that placement should not be 
conditioned on whether a transgender person has undergone any medical 
treatment or been able to change the gender markers on their 
identification documents, or have to look a certain way. Another 
commenter stated, citing several examples in the United States and 
elsewhere, that shelters that have adopted a rule basing gender on 
self-identification, as opposed to sex assigned at birth, report 
uniform success in being able to serve and integrate transgender people 
into their programs and services.
    HUD Response: HUD has never intended to give broad discretion to 
recipients and providers to make case-by-case decisions. The proposed 
rule required providers of temporary, emergency shelter and services to 
document 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.
    To clarify that placement is to be made on the basis of an 
individual's self-identification of gender, Sec.  5.106(b) of this 
final rule includes a provision stating that individuals may not be 
subjected to intrusive questioning relating to their gender identity or 
asked to provide anatomical information, documentation, or physical or 
medical evidence of gender identity. Therefore,

[[Page 64777]]

this final rule makes clear that placement in accordance with an 
individual's gender identity cannot be conditioned on whether a 
transgender person has undergone medical treatment, has been able to 
change identification documents to reflect their gender identity, or 
has a certain appearance or gender expression.
    Additionally, as discussed earlier in this preamble, in Sec.  
5.106(c) of this final rule, which addresses placement and 
accommodation in temporary, emergency shelters and other facilities 
with physical limitations or configurations that require and are 
permitted to have shared sleeping quarters or shared bathing 
facilities, HUD removes the proposed rule language that, under narrow 
circumstances, a written case-by-case determination could be made on 
whether an alternative accommodation for a transgender individual would 
be necessary to ensure health and safety. In its place, HUD provides 
that 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 an 
individual's gender identity. Further, this revised paragraph (c) 
provides for post-admission accommodations, where, after an individual 
has been admitted to a shelter or other building and facilities, 
providers must take nondiscriminatory steps that may be necessary and 
appropriate to address privacy concerns raised by residents or 
occupants. This provision for post-admission accommodations applies to 
all individuals, regardless of gender identity.
    Comment: In contrast to the preceding comment, commenters stated 
that the requirements that an accommodation be permitted only in 
``narrow'' or ``rare'' circumstances, and then only when ``necessary'' 
to ensure two specified interests--health and safety-- is too 
circumscribed to adequately protect the interests of all residents. The 
commenter stated that an accommodation that furthers the interests in 
protecting the health and safety of residents should be allowed, for 
example, even if not, strictly speaking, ``necessary,'' and not only at 
the request of the person ``claiming'' to be transgender. Commenters 
stated that, even as to housing facilities that admit both men and 
women, residents should not be required to share with persons of the 
opposite sex those areas, such as sleeping and bathing areas, properly 
reserved to persons of one sex, for reasons of privacy.
    HUD Response: As discussed above, this final rule notes that 
providers need to take nondiscriminatory steps that may be necessary 
and appropriate to address privacy concerns raised by residents or 
occupants. HUD stresses the use of the term ``nondiscriminatory'' in 
this provision. An example of a nondiscriminatory step to address 
privacy concerns would be accommodating a request of a domestic 
violence victim who has specific privacy concerns to bathe at specific, 
separate times from other shelter or facility occupants.
    As HUD has noted, it has studied the issue for 4 years and 
determined, following the lead of other Federal agencies, that to 
ensure equal access, the general rule must be that individuals are 
accommodated in accordance with their gender identity. If HUD were to 
provide broader discretion, placement decisions would rely on more 
subjective factors that might differ from provider to provider based on 
the views, beliefs, and unsubstantiated fears of individual shelter 
staff.
    Comment: A commenter said the rule prohibits a determination from 
being based on complaints of other shelter residents when those 
complaints are based on actual or perceived gender identity, but HUD 
should provide guidelines to help providers distinguish complaints that 
are based on recognition of threat because of a client's biological 
sex, as opposed to ``gender identity.''
    HUD Response: HUD agrees that the language referenced by the 
commenter could cause confusion. HUD, therefore, has removed the 
language and makes clear that in temporary, emergency 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, placements and accommodations 
shall be made in accordance with an individual's gender identity. Once 
an individual is accommodated, providers shall take appropriate steps 
to address privacy concerns raised by all residents and occupants. By 
considering complaints, and taking appropriate action in response, a 
provider will minimize the risk of harassment occurring among occupants 
and between staff and occupants.\23\ Such actions must, however, be 
nondiscriminatory.
---------------------------------------------------------------------------

    \23\ Unlawful harassment in shelters that qualify as dwellings 
violates the Fair Housing Act. See Quid Pro Quo and Hostile 
Environment Harassment and Liability for Discriminatory Housing 
Practices Under the Fair Housing Act, proposed rule, 80 FR 63720 
(Oct. 21, 2015).
---------------------------------------------------------------------------

    Comment: Commenters stated that the rule should clarify that 
shelters may give transgender people case-by-case alternative or 
modified accommodations only when they request them and not at the 
mandate of shelter staff and/or to accommodate the wishes, fears, or 
discomfort of others--and that such alternatives or modifications shall 
not be based on a person's actual or perceived gender identity. 
Commenters also stated that the rule should clarify that shelters shall 
provide accommodations requested by a transgender shelter-seeker, and 
only when those accommodations are reasonable and appropriate to 
protect the health, safety or privacy of that individual. Commenters 
stated that a person's ability to request an alternative or modified 
placement should not be limited to ``shared sleeping quarters or shared 
bathing facilities'' and recommended that the provision for such 
accommodations be incorporated into paragraph (b) of Sec.  5.106 (which 
is titled Equal Access in accordance with gender identity) rather than 
in separate paragraph (d) of Sec.  5.106 (which is titled Referrals). A 
commenter said that many shelters find that, where possible, providing 
increased privacy for all residents is ideal; for example, private 
rooms and bathrooms and showers with locks. A commenter stated that the 
rule should mandate that shelters provide unisex bathrooms with 
individual showers.
    Commenters stated that the rule should clarify that any alternative 
or modified placements must provide access to the same or substantially 
equivalent services, or a ``comparable alternative program.'' 
Commenters stated that HUD should clarify that shelters will be in 
noncompliance with the rule if they provide some services (e.g., hotel 
vouchers) but otherwise deny equivalent services, such as the same 
length of stay, other supportive services offered by the shelter, or 
services provided at the primary program site due to a lack of 
transportation. A commenter stated that a provider that refers an 
individual to another program should be required to confirm that the 
individual received shelter or services at that alternative program.
    HUD Response: As previously discussed, this final rule removes the 
case-by-case determination language in the proposed rule and 
establishes that individuals in HUD-funded shelters and other buildings 
and facilities with physical limitations or configurations that require 
and are permitted to have shared sleeping quarters or shared

[[Page 64778]]

bathing facilities must be accommodated in accordance with their gender 
identity. This final rule makes clear that providers do not have the 
discretion to suggest that individuals may not be accommodated in 
shelters that match their gender identity because their gender identity 
differs from their sex assigned at birth. As a result, HUD has 
eliminated the referral provision that was in Sec.  5.106 (d) of the 
proposed rule. Section 5.106(b) of this final rule broadly discusses 
how policies and procedures must ensure equal access to CPD programs 
based on gender identity.
    As discussed earlier in this preamble, the revisions to this final 
rule do not preclude the existing possibility that any occupant may 
request a referral to an alternate project or that, in such cases, 
staff may provide a referral to another project or, where none is 
available and funding permits, offer clients a hotel or motel voucher. 
HUD appreciates the commenters' concerns that a transgender individual 
who is provided an alternative accommodation at the individual's 
request should be provided an accommodation that is comparable to the 
shelter within which the individual originally sought accommodation and 
agrees that when providers make referrals they should ensure that an 
opportunity to access equivalent alternative accommodations, benefits, 
and services is provided, or the requestor should receive a referral to 
a comparable alternative program with availability and equivalent 
accommodations, benefits, and services.
    HUD is encouraged that many shelters are providing increased 
privacy for all residents, such as private rooms and bathrooms and 
showers with locks, and as discussed earlier in this preamble, HUD 
encourages this where feasible. This rule, however, does not mandate 
this configuration. Mandatory configuration of shelters is beyond the 
scope of this rulemaking.
    Comment: Other commenters stated that they oppose any exception to 
the requirement that shelter be provided based on gender identity to 
protect the health and safety of shelter employees or other people 
staying in the shelter, because such an exception is not necessary and 
will be used as pretext to deny shelter to transgender individuals. 
Commenters stated that under the proposed rule language, it is not 
clear whose health and safety the exception is intended to protect. A 
commenter stated that the very allowance of an exception reinforces the 
attitude that a person is a threat to others based solely on her or his 
status as a transgender individual. The commenter stated that if a 
shelter provider is concerned that a transgender individual's behavior 
or conduct poses a threat to others' health or safety, then the 
provider can and should address that in the same way that it addresses 
the problematic conduct of any other person staying in the shelter.
    Another commenter stated that the exception, which is ambiguous, 
should be removed, because it is unclear from the preamble what kind of 
``health and safety'' circumstances would (or should) ever justify 
denying shelter to a transgender individual in accordance with their 
gender identity. A commenter stated that the exception should apply 
only to the health and safety of the shelter seeker, meaning that only 
shelter seekers could make these requests for other accommodations for 
themselves. Other commenters stated that HUD should take special care 
to ensure that providers are not choosing these alternatives in order 
to circumvent the general prohibition on discrimination. A commenter 
stated that it would be very helpful for HUD to provide guidance in the 
form of specific examples of effective policy adjustments, as well as 
other ways shelter and housing providers can mitigate actual or 
perceived threats to health or safety, in a less burdensome way. A 
commenter stated that guidance is needed to address what covered 
providers should do in scenarios where they lack financial resources to 
provide alternative accommodations or referrals, so as not to violate 
the rule.
    HUD Response: HUD appreciates these comments and, as discussed 
previously, HUD has revised the rule to clarify that placement and 
accommodation must be made in accordance with an individual's gender 
identity.
    Comment: A commenter stated that the goals of this rule could 
conflict with the goals of ``Violence Against Women Reauthorization Act 
of 2013: Implementation in HUD Housing Programs,'' a rule that seeks to 
offer expanded protections to victims of domestic violence, dating 
violence, sexual assault, and stalking within HUD-assisted and HUD-
insured housing. The commenter suggested that HUD provide additional 
guidance to operating facilities with shared sleeping quarters on how 
to offer alternative accommodations to transgender individuals when 
there are residents that are sensitive to sharing facilities with the 
opposite sex due to their experiences with domestic violence.
    HUD Response: HUD's proposed rule implementing the housing 
protections of VAWA, which as the commenter noted would expand 
protections to victims of domestic violence, dating violence, sexual 
assault, and stalking in HUD-assisted and HUD-insured housing, does not 
conflict with this final rule. HUD's proposed rule on VAWA would 
implement statutory requirements that: (1) Prohibit housing providers 
under certain HUD programs (covered housing providers) from denying or 
terminating assistance or occupancy rights to individuals because they 
are or have been victims of domestic violence, dating violence, sexual 
assault, or stalking; (2) require covered housing providers to notify 
tenants and applicants of their rights under VAWA, and detail what 
documentation covered housing providers may ask for; (3) require 
covered housing providers to create emergency transfer plans; and (4) 
provide for lease bifurcations. Nothing in HUD's rule proposing to 
implement VAWA contradicts this rulemaking requiring that individuals 
be housed and receive services in accordance with their gender 
identity.
    Further, as HUD explained in the CPD Equal Access proposed rule, 
VAWA imposed a new grant condition that prohibits discrimination by 
recipients of grants administered by DOJ, including grants to provide 
housing assistance for survivors of domestic violence. Although this 
provision relates to DOJ, and not to HUD, HUD noted that on April 9, 
2014, DOJ's published guidance entitled ``Frequently Asked Questions: 
Nondiscrimination Grant Condition in the Violence Against Women 
Reauthorization Act of 2013,'' which 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 
that recipients that operate sex-segregated or sex-specific programs 
should assign a beneficiary to the group or service that corresponds to 
the gender with which the beneficiary identifies, and may consider on a 
case-by-case basis whether a particular housing assignment would ensure 
the victim's health and safety, but recipients 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. The guidance further states that, 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, but 
the recipient may not ask questions about the beneficiary's anatomy or 
medical history or make burdensome demands for identity documents.

[[Page 64779]]

    HUD's rule requires that individuals be accommodated in accordance 
with their gender identity. It is beyond the scope of this rule to 
detail methods for best serving victims of domestic violence, dating 
violence, sexual assault, or stalking. However, as discussed earlier, 
this final rule requires that providers must take nondiscriminatory 
steps that may be necessary and appropriate to address privacy concerns 
raised by all residents or occupants. HUD notes that both victims and 
perpetrators of domestic violence and other VAWA crimes include persons 
who are transgender or gender nonconforming individuals and persons who 
are not.
    Comment: Commenters asked that HUD include other CPD programs that 
will be active in the near future, including the Housing Trust Fund and 
the Rural Housing Stability Assistance program, or provide an indicator 
that the list is nonexhaustive so the Secretary can add more CPD 
programs.
    HUD Response: HUD's intent was to cover all CPD programs, as noted 
in the preamble to the proposed rule. Therefore, HUD makes clear in 
Sec.  5.106(a) that additional CPD programs, such as the Housing Trust 
Fund and Rural Housing Stability Assistance programs, are included.
    Comment: Commenters stated that the rule should clarify that 
transgender persons have a right to housing and treatment consistent 
with their gender identity in all circumstances--in the preamble and 
training and technical assistance. Other commenters said it is 
essential that the rule address more directly the problem of violence, 
including the high rates of sexual assault, against LGBT and gender 
nonconforming persons in federally funded shelters.
    HUD Response: HUD's 2012 Equal Access Rule and this CPD Equal 
Access Rule explicitly acknowledge the higher rate of discrimination 
and acts of violence experienced by transgender persons and both rules 
address the issue that transgender individuals and other gender 
nonconforming persons must be able to participate in HUD programs on an 
equal basis as all other program participants. HUD guidance and 
training on its Equal Access rules cover these subjects.
    Comment: The rule must address public and staff perceptions.
    HUD Response: The final rule makes clear that transgender and other 
gender nonconforming individuals are to be admitted, placed, 
accommodated, and provided with services in accordance with their 
gender identity. Public and staff perceptions are not an appropriate 
basis for denial or limitation of access. Any additional rulemaking to 
address public and staff perceptions of transgender and gender 
nonconforming persons is beyond the scope of this rulemaking. HUD 
acknowledges, however, that such topics may be appropriate for training 
and technical assistance materials for shelter providers.
    Comment: Commenters stated that HUD-funded programs should be 
required to create and implement written policies specifying how they 
will combat harassment, violence, and sexual assault and, in 
particular, how they will protect the health and safety of LGBT and 
gender nonconforming persons and others who are at increased risk of 
sexual violence. A commenter recommended that HUD require its 
recipients and subrecipients to create written policy and guidelines 
combating violence against persons marginalized due to their sexual 
orientation or gender identity and to require data collection to help 
monitor accountability. Commenters stated that HUD should provide 
guidance detailing necessary provisions of such policies and 
recommended best practices, for example, guidance or best practices 
pertaining to the shelter-seeker's own individualized safety 
assessment, through training and technical assistance for grantees. 
Commenters also stated that HUD should specify that the failure to 
create and implement such policies could result in noncompliance with 
the regulations and, thereby, jeopardize Federal funding and/or result 
in HUD taking action under its regulations. Another commenter stated 
that it is unclear who has the responsibility to establish and amend 
policies and procedures under the rule, so HUD should clarify that the 
covered recipients, subrecipients, owners, operators, managers, and 
providers must create, implement, and revise these policies and 
procedures as necessary. The commenter stated that HUD should identify 
in a subsequent notice the specific types of individuals and entities 
that have these duties within each housing program. The commenter also 
stated that HUD should provide sample policies and procedures, 
especially regarding privacy and security, so that covered individuals 
or entities that are unfamiliar with gender identity issues can have 
access to models in devising their own policies and procedures.
    Commenters stated that the rule should mandate training for shelter 
staff as a prerequisite to receiving HUD funding. Another commenter 
stated that guidance from advocacy organizations suggests that ongoing 
resident training should be implemented in addition to current HUD-
required staff training. A commenter stated that HUD should ensure that 
community organizations are made aware of the rule, once the rule is 
implemented, in order to better support their outreach work to 
transgender and gender nonconforming people in poverty.
    Other commenters asked HUD to provide training on the requirement 
that recipients and subrecipients must treat transgender individuals 
respectfully by using an individual's self-identified name and 
pronouns, regardless of whether they have been able to legally change 
it.
    HUD Response: HUD agrees with the commenters that successful 
implementation of this rule depends in no small part on guidance and 
training. HUD undertook intensive training efforts following 
publication of its 2012 Equal Access Rule and 2015 Notice CPD-15-02, 
and HUD intends to do the same for this CPD Equal Access Rule. With 
respect to commenters' questions about the establishment of policies, 
Sec.  5.106(b) of this final rule (and of the proposed rule) requires 
that the admissions, occupancy, and operating policies and procedures 
of recipients, subrecipients, owners, operators, managers, and 
providers (covered by this rule), including policies and procedures to 
protect privacy, health, safety, and security, shall be established or 
amended, as necessary, and administered in a nondiscriminatory manner 
so: (1) Equal access to programs, shelters and other buildings and 
facilities, benefits, services, and accommodations is provided to an 
individual in accordance with the individual's gender identity, and in 
a manner that affords equal access to the individual's family; (2) an 
individual is placed, served, and accommodated in accordance with the 
individual's gender identity; (3) an individual is not subjected to 
intrusive questioning or asked to provide anatomical information or 
documentary, physical, or medical evidence of the individual's gender 
identity; and (4) consistent with Sec.  5.105(a)(2),eligibility 
determinations are made and assisted housing is made available in CPD 
programs without regard to actual or perceived gender identity.
    Comment: A commenter stated that the rule's case-by-case analysis, 
training, and referral requirements will involve more time and 
resources than HUD estimates. The commenter stated that HUD should 
provide additional resources and tools to program grantees so that 
proper training can be

[[Page 64780]]

conducted, particularly for small grantees with limited resources.
    HUD Response: As discussed earlier, this final rule eliminates the 
provision regarding a case-by-case analysis. As HUD noted in response 
to the preceding comment, HUD will undertake training and provide 
training and guidance to assist recipients and subrecipients under the 
CPD programs covered by this rule.
    Comment: Commenters stated that they support the elimination of the 
inquiries prohibition provision for the following reasons: (1) The 
prohibition would likely cause confusion in the context of applying 
Sec.  5.106, as it may be construed to prohibit any discussion of 
gender identity and (2) it appears to prohibit the routine and 
voluntary collection of demographic data regarding sexual orientation 
and gender identity for purposes of program evaluation--and, while an 
inquiry regarding sexual orientation or gender identity may constitute 
discrimination or be evidence of discrimination under the rule, 
inquiries for legitimate and nondiscriminatory purposes should be 
permitted. Commenters stated that they supported the removal of the 
prohibition to the extent that the final rule is clear that shelter and 
housing providers can only inquire about an applicant's or resident's 
sexual orientation and gender identity for lawful purposes; for 
example, to determine unit size and as part of the routine and 
voluntary collection of demographic data concerning sexual orientation 
and gender identity for program evaluation, so long as the data is 
collected and used for nondiscriminatory purposes in a 
nondiscriminatory fashion. A commenter stated, in support of removing 
the prohibition, and providing suggested language, that they urged HUD 
to require that specific protocols be put in place to protect the 
confidentiality of information about sexual orientation or transgender 
status.
    HUD Response: HUD is committed to ensuring the safety and privacy 
of all individuals, including transgender and gender nonconforming 
individuals, in CPD programs. In the proposed rule, HUD expressed its 
intent in proposing the removal of the inquiries prohibition. HUD 
emphasized that it would only permit recipients or subrecipients to 
inquire about a person's sexual orientation or gender identity for 
lawful, nondiscriminatory purposes. In the final rule, to prohibit 
inappropriate inquiries related to gender identity, HUD included 
language in Sec.  5.106(b) stating that it would be inappropriate to 
subject individuals to intrusive questioning or ask them to provide 
anatomical information or documentary, physical, or medical evidence of 
the individual's gender identity. In addition, as noted previously in 
this preamble, CPD previously issued guidance, ``Appropriate Placement 
for Transgender Persons in Single-Sex Emergency Shelters and Other 
Facilities'' (Notice CPD-15-02, Feb. 20, 2015), which outlines best 
practices for appropriate and inappropriate inquiries related to sex 
and provides guidance, and recommends staff training, on addressing 
safety or privacy concerns. HUD intends to issue further guidance in 
connection with the issuance of this final rule.
    Comment: A commenter stated, citing recommended guidance and model 
policies, that Massachusetts prohibits gender-based inquiries only in 
cases where shelter guests are perceived as transgender, suggesting 
that implementation of the proposed rule would be possible without 
removing the prohibition.
    HUD Response: As noted in HUD's proposed rule, removal of the 
inquiries prohibition would allow temporary, emergency shelters and 
other facilities with physical limitations or configurations that 
require and are permitted to have 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. This is an inquiry that could be asked of all individuals, 
and not solely of those who are perceived to be transgender. Further, 
as HUD has stated, removal of the inquiries prohibition 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.
    Comment: Commenters stated that the rule should expressly prohibit 
program staff from asking individuals questions about their anatomy, 
medical procedures, or medical history or making requests for identity 
documents or other documentation of gender as a precondition for being 
housed consistent with their gender identity,
    HUD Response: Although the final rule removes the provision of 
Sec.  5.105 that prohibited inquiries into an individual's sexual 
orientation or gender identity for purposes of facilitating providers' 
compliance with the requirement of Sec.  5.106 that an individual is to 
be admitted, placed, accommodated, and provided services in accordance 
with the individual's gender identity, HUD agrees with commenters that 
transgender and gender nonconforming individuals should not be required 
to answer invasive questions about their anatomy or medical history in 
order to be accommodated and provided services in CPD programs. To 
address this concern, HUD has revised Sec.  5.106(b) to prohibit 
intrusive questions related to gender identity and prohibit requests 
for anatomical information and requests for documentary, physical, or 
medical evidence.
    Comment: Commenters recommend that HUD emphasize in the preamble, 
and in training and technical assistance, the importance of protecting 
the privacy of information related to a shelter seeker's sexual 
orientation and gender identity. A commenter stated that transgender 
people in particular face serious risks of danger, including verbal 
harassment and physical assault, when their transgender status or 
gender identity is revealed without their consent. The commenter said 
that steps to keep a shelter seeker's sexual orientation and/or gender 
identity confidential include, without limitation: (1) Safeguarding all 
documents and electronic files, (2) containing this information and 
having conversations about these topics in private to prevent 
disclosure, (3) establishing explicit nondiscrimination provisions, (4) 
ensuring safe environments in programs and shelters, (5) implementing 
rigorous confidentiality safeguards, and (6) ensuring that shelter 
staff members receive appropriate training. The commenter said that 
successful implementation of these important requirements will 
facilitate the collection of much needed data, allowing HUD to better 
determine the populations its programs serve, their needs and consumer 
experiences, and their use of programs and facilities.
    HUD Response: Many of CPD's programs that govern temporary, 
emergency shelters and other buildings and facilities impose strict 
confidentiality requirements to ensure the privacy of individuals that 
are housed in these facilities. (See Sec. Sec.  574.440, 576.500(x), 
578.103(b) and (d)(2), and 578.23(c)(4)(i).) This final rule requires 
that privacy be considered in adopting admissions, occupancy, and 
operating policies and procedures in Sec.  5.106(b) and provides that 
shelters and other buildings and facilities take nondiscriminatory 
steps that may be necessary and appropriate to address privacy concerns 
raised by residents or occupants in Sec.  5.106(c). Further

[[Page 64781]]

guidance will address privacy and confidentiality in data collection.
    Comment: Commenters stated that HUD should clarify in the preamble 
to the final rule, and in training and technical assistance to its 
field staff, that inquiries that are used to limit the provision of 
shelters or housing, to harass an individual, or to further any other 
discriminatory purpose fall under the prohibition on discrimination. 
Commenters stated that, by contrast, HUD should state clearly in those 
areas that the routine and voluntary collection of demographic 
information from all clients or program participants is permissible, so 
long as it is collected and used in a nondiscriminatory fashion.
    HUD Response: HUD appreciates the commenters raising this issue and 
will address this issue in guidance. HUD reiterates that conduct that 
violates the rule may also violate the Fair Housing Act if the facility 
is subject to the Fair Housing Act's nondiscrimination requirements and 
the conduct is because of race, color, religion, national origin, 
familial status, sex, or disability.

IV. 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). Under 
Executive Order 12866 (Regulatory Planning and Review), a determination 
must be made on 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. Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. A 
determination was made that this final rule is a ``significant 
regulatory action'' as defined in section 3(f) of Executive Order 12866 
(although not economically significant, as provided in section 3(f)(1) 
of that order).
    This final rule is consistent with Administration policy in its 
direction that providers in all CPD programs must ensure that their 
policies and procedures to protect privacy, health, safety, and 
security are administered so that equal access is provided to HUD 
programs in accordance with an individual's gender identity. This final 
rule also clarifies how temporary, emergency 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 comply with the requirement that equal access 
be provided to programs, buildings, facilities, services, benefits, and 
accommodations in accordance with an individual's gender identity. This 
clarification will benefit clients accessing CPD-funded programs, 
including those with temporary, emergency shelters and other buildings 
and facilities, by assuring that all clients receive equal access and 
will benefit the CPD-funded facilities by making compliance with HUD's 
equal access requirements easier.
    These requirements benefit all occupants by ensuring that providers 
understand that they need to be responsive to individual health, 
safety, security, and privacy concerns, while ensuring that they do not 
take any discriminatory steps to address these concerns. This final 
rule also amends the definition of gender identity and sexual 
orientation in Sec.  5.100 to clarify the difference between actual and 
perceived gender identity, which is necessary to the adoption of Sec.  
5.106, and to reflect recent changes in the definition of sexual 
orientation that uses updated terminology but does not expand the 
coverage of the term. This final rule eliminates the prohibition on 
inquiries relating to sexual orientation or gender identity in Sec.  
5.105(a)(2)(ii). Both of these changes make it easier for recipients 
and subrecipients of CPD funding, as well as owners, operators, and 
managers of shelters, buildings, and other facilities, and providers of 
services funded by CPD programs to comply with the requirements of both 
Sec. Sec.  5.105(a)(2)(i) and 5.106.

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 rules requirement that 
organizations maintain records will be limited. Organizations are 
already required to maintain up-to-date policies and procedures in 
accordance with HUD guidance and regulations. The only change is that 
all CPD programs must now maintain records of prior policies and 
procedures for up to 5 years from when they make changes to comply with 
these requirements. HUD believes that these limited recordkeeping 
requirements on small organizations are reasonable to ensure equal 
access to CPD programs, facilities, services, benefits, and 
accommodations in accordance with an individual's gender identity. 
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.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3520), 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 
information collection requirements for the CPD programs impacted by 
this rule--HOME, CDBG (State and entitlement), HOPWA, ESG, and CoC--
have been approved by OMB and assigned OMB control numbers 2506-0171, 
2506-0085, 2506-0077, 2506-0133, 2506-0089, and 2506-0199. The 
information collection requirements for CPD's Housing Trust Fund and 
Rural Housing Stability Assistance programs will be included when those 
programs are implemented.

Environmental Impact

    This 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 rule does 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

[[Page 64782]]

of their regulatory actions on State, local, and tribal governments and 
on the private sector. This 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.

    Accordingly, for the reasons stated in the preamble, and in 
accordance with HUD's authority in 42 U.S.C. 3535(d), HUD amends 24 CFR 
part 5 as follows.

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

0
1. The authority citation for 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 definitions for ``Gender identity'' and 
``Sexual orientation'' 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 and regardless 
of the person's perceived gender identity. 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 or 
identified in documents.
* * * * *
    Sexual orientation means one's emotional or physical attraction to 
the same and/or opposite sex (e.g., homosexuality, heterosexuality, or 
bisexuality).
* * * * *


Sec.  5.105  [Amended]

0
3. In Sec.  5.105, remove paragraph (a)(2)(ii) and the paragraph 
(a)(2)(i) heading and redesignate paragraph (a)(2)(i) as (a)(2).


0
4. Add Sec.  5.106 to read as follows:


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

    (a) Applicability. This section applies to assistance provided 
under Community Planning and Development (CPD) programs, including 
assistance under the following CPD programs: HOME Investment 
Partnerships program (24 CFR part 92), Housing Trust Fund program (24 
CFR part 93), 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), Continuum 
of Care program (24 CFR part 578), or Rural Housing Stability 
Assistance Program (24 CFR part 579). The requirements of this section 
apply 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.
    (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, health, safety, and security, shall be 
established or amended, as necessary, and administered in a 
nondiscriminatory manner to ensure that:
    (1) Equal access to CPD programs, shelters, other buildings and 
facilities, benefits, services, and accommodations is provided to an 
individual in accordance with the individual's gender identity, and in 
a manner that affords equal access to the individual's family;
    (2) An individual is placed, served, and accommodated in accordance 
with the gender identity of the individual;
    (3) An individual is not subjected to intrusive questioning or 
asked to provide anatomical information or documentary, physical, or 
medical evidence of the individual's gender identity; and
    (4) Eligibility determinations are made and assisted housing is 
made available in CPD programs as required by Sec.  5.105(a)(2).
    (c) Placement and accommodation in temporary, emergency shelters 
and other buildings and facilities with shared sleeping quarters or 
shared bathing facilities--(1) Placement and accommodation. Placement 
and accommodation of an individual in temporary, emergency 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.
    (2) Post-admission accommodations. A recipient, subrecipient, 
owner, operator, manager, or provider must take nondiscriminatory steps 
that may be necessary and appropriate to address privacy concerns 
raised by residents or occupants and, as needed, update its admissions, 
occupancy, and operating policies and procedures in accordance with 
paragraph (b) of this section.
    (d) Documentation and record retention. Providers shall document 
and maintain records of compliance with the requirements in paragraph 
(b) of this section for a period of 5 years.

    Dated: September 14, 2016.
Juli[aacute]n Castro,
Secretary.
[FR Doc. 2016-22589 Filed 9-20-16; 8:45 am]
 BILLING CODE 4210-67-P