Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 44811-44818 [2020-14718]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Proposed Rules]
[Pages 44811-44818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14718]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 5 and 576

[Docket No. FR-6152-P-01]
RIN 2506-AC53


Making Admission or Placement Determinations Based on Sex in 
Facilities Under Community Planning and Development Housing Programs

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would provide that grant recipients, 
subrecipients, owners, operators, managers, and providers under HUD 
programs that permit single-sex or sex-specific facilities (such as 
temporary, emergency shelters or other facilities with physical 
limitations or configurations that require and are permitted to have 
shared sleeping quarters or bathrooms) may establish a policy, 
consistent with federal, state, and local law, to accommodate persons 
based on sex. The proposed rule would maintain requirements from HUD's 
2012 final rule entitled ``Equal Access to Housing in HUD Programs 
Regardless of Sexual Orientation or Gender Identity'' and would require 
shelters to uniformly and consistently apply any such policy the 
shelter develops. The proposed rule would require any determination of 
sex by the shelter provider to be based on a good faith belief, and 
require the shelter provider to provide transfer recommendations if a 
person is of the sex not accommodated by the shelter and in some other 
circumstances.

DATES: Comment Due Date: September 22, 2020.

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

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

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

FOR FURTHER INFORMATION CONTACT: Andrew Hughes, Chief of Staff, U.S. 
Department of Housing and Urban Development, 451 7th Street, SW, 
Washington, DC 20410, telephone number 202-402-7204 (this is not a 
toll-free number). Persons with hearing or speech impairments may 
access this number via TTY by calling the Federal Relay Service at 800-
877-8389 (toll-free number).

SUPPLEMENTARY INFORMATION:

I. History

    HUD has always supported effective models at reducing homelessness 
and providing emergency shelter for those in

[[Page 44812]]

need, including through supporting single-sex or sex-specific shelters.
    In 2012, HUD published a final rule entitled ``Equal Access to 
Housing in HUD Programs Regardless of Sexual Orientation or Gender 
Identity'' (2012 Rule) to ensure that its core housing programs are 
open to all eligible families and individuals ``without regard to 
actual or perceived sexual orientation, gender identity, or marital 
status.'' \1\ The 2012 Rule defined ``gender identity'' as ``actual or 
perceived gender-related characteristics.'' \2\ The 2012 Rule generally 
prohibited inquiries into gender identity in determining eligibility or 
making housing available, but permitted inquiries related to an 
applicant's or occupant's sex for the limited purpose of determining 
placement in temporary, emergency shelters with shared bedrooms or 
bathrooms, or for determining the number of bedrooms to which a 
household may be entitled.\3\ In promulgating the 2012 Rule, HUD relied 
on the Secretary's general rulemaking authority pursuant to section 
7(d) of the Department of HUD Act,\4\ rather than the Fair Housing Act 
\5\, or other civil rights and nondiscrimination authorities.
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    \1\ 77 FR 5662, February 3, 2012.
    \2\ See Sec.  5.100 at 77 FR 5674. This definition comes from 18 
U.S.C. 249.
    \3\ See Sec.  5.105(a)(2)(ii) at 77 FR 5674.
    \4\ 42 U.S.C. 3535(d).
    \5\ 42 U.S.C. 3601-3619 (prohibits discrimination in housing 
because of race, color, national origin, religion, sex, familiar 
status and disability).
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    After the promulgation of the 2012 Rule, HUD determined that the 
2012 Rule did not comprehensively define how shelters must accommodate 
transgender individuals. On September 21, 2016, HUD expanded on its 
2012 Rule and published a final rule entitled, ``Equal Access in 
Accordance with an Individual's Gender Identity in Community Planning 
and Development Programs'' (2016 Rule). HUD mandated that transgender 
persons and other persons ``who do not identify with the sex they were 
assigned at birth'' be given access to Community Planning and 
Development (CPD)-assisted programs, benefits, services, and 
accommodations, some of which are permitted to be operated on a single-
sex or sex-specific basis (collectively, ``single-sex facilities''), in 
accordance with their gender identity. These programs include temporary 
and emergency shelter programs, such as the Emergency Solutions Grants 
\6\ program and the Housing Opportunities for Persons with AIDS (HOPWA) 
program.\7\ The 2016 Rule maintained the definition of ``gender 
identity'' included in the 2012 Rule to mean ``the gender with which a 
person identifies, regardless of the sex assigned at birth[.]'' \8\
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    \6\ Codified in 24 CFR part 576.
    \7\ Codified in 24 CFR part 574.
    \8\ 80 FR 72648.
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    The 2016 Rule removed paragraph 5.105(a)(2)(ii), the provision of 
the 2012 Rule that allowed for lawful inquiries into an occupant's sex 
in the case of temporary or emergency shelters with shared bathroom or 
bedroom facilities, or for the purpose of determining the number of 
bedrooms to which a household may be entitled. Instead, the 2016 Rule 
contained a provision that policies and procedures must ensure that 
individuals are not subject to intrusive questioning or asked to 
provide anatomical information or documentary, physical, or medical 
evidence of their gender identity.\9\
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    \9\ Section 5.106(b)(3).
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    The 2016 Rule, Sec.  5.106(c), requires that individuals seeking 
access to single-sex facilities be placed and accommodated in 
accordance with their self-identified gender identity, expressly 
declining to adopt a provision of the proposed rule that provided that 
in certain cases, an alternative accommodation for a transgender 
persons and other persons ``who do not identify with the sex they were 
assigned at birth'' would be appropriate to ensure health and safety. 
Section 5.106(c) requires recipients to take nondiscriminatory steps as 
necessary and appropriate to address the privacy concerns of all 
residents and occupants. No funding was specifically provided for this 
purpose.
    Finally, the Housing Trust Fund and Rural Housing Stability 
Assistance programs were added explicitly to the non-exclusive list of 
programs covered, and language was added to indicate that the 2016 rule 
applies to both recipients of HUD CPD grants and subrecipients, as well 
as those who administer CPD-funded programs and services.

II. Proposed Rule

    HUD has reconsidered its 2016 Rule and determined that providers 
should be allowed, as permitted by the Fair Housing Act, to consider 
biological sex in placement and accommodation decisions in single-sex 
facilities. HUD thus proposes to allow shelters that may already 
consider sex in admission and accommodation decisions (i.e., facilities 
that are not covered by the Fair Housing Act) to establish a policy 
that places and accommodates individuals on the basis of their 
biological sex, without regard to their gender identity. This will 
allow single-sex facilities to regain the flexibility to serve their 
unique populations that they have following the 2012 Rule. Nothing in 
the proposed rule restricts shelters from maintaining a policy on 
placing and accommodating an individual based on gender identity.
    The proposed rule leaves in place requirements from the 2012 Rule 
that shelters and all other participants in HUD programs ensure that 
their programs are open to all eligible individuals and families 
without regard to sexual orientation or gender identity. Thus, a 
shelter may place an individual based on his or her biological sex but 
may not discriminate against an individual because the person is or is 
perceived as transgender.
    For example, under the proposed rule, if a single-sex facility 
permissibly provides accommodation for women, and its policy is to 
serve only biological women, without regard to gender identity, it may 
decline to accommodate a person who identifies as female but who is a 
biological male. Conversely, the same shelter may not, on the basis of 
sex, decline to accommodate a person who identifies as male but who is 
a biological female. A different shelter may choose not to make 
placement decisions or accommodations based on biological sex and there 
remains no mandate that shelters take biological sex into account.

III. Justification for the Rule Change

    HUD believes this proposed rule better resolves the various 
equities involved within the shelter context than HUD's 2016 Rule. In 
particular, HUD believes that the 2016 Rule impermissibly restricted 
single-sex facilities in a way not supported by congressional 
enactment, minimized local control, burdened religious organizations, 
manifested privacy issues, and imposed regulatory burdens.
    First, the 2016 Rule restricted single-sex facilities in a way not 
supported by Congressional enactment. Congress has prohibited 
discrimination on the basis of sex in ``dwellings under the Fair 
Housing Act. But it has not acted to prohibit consideration of sex in 
temporary and emergency shelters, many of which do offer sex-specific 
housing or sex-specific areas of housing (such as facilities with 
physical limitations or configurations that have shared sleeping 
quarters or bathing areas). As the 2016 Rule recognizes, ``[a]n 
emergency shelter and other building and facility that would not 
qualify as dwellings under the Fair Housing Act are not subject to the 
Act's

[[Page 44813]]

prohibition against sex discrimination and thus may be permitted by 
statute to be sex segregated.'' \10\ But HUD's 2016 Rule effectively 
restricts shelters from making this policy choice permitted by the Fair 
Housing Act, by--for example--requiring shelters to allow biological 
males who self-identify as females to be admitted to female-only 
shelters. Thus, under HUD's 2016 Rule, the female-specific shelters 
that are permitted under the Fair Housing Act can be effectively 
restricted from being female-specific.
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    \10\ 80 FR 72644 (preamble) (emphasis added).
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    Moreover, HUD did not rely on explicit statutory authorization, 
like the prohibition against ``sex'' discrimination under the Fair 
Housing Act, when HUD implemented its 2016 Rule. Rather, HUD relied on 
the Secretary's plenary authority to issue regulations, indicating that 
``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.'' But HUD should not reach beyond the authority granted to 
HUD by Congress. By acting under plenary authority instead of a more 
specific affirmative grant of authority from Congress, the 2016 Rule 
violated the basic principle of administrative law that an agency 
should not go beyond the scope of the power granted them by duly 
enacted legislation and imposed a regulatory burden. Agencies are to 
``implement the statute according to its text and to apply the law no 
further than the text would permit'' because ``any attempt to do so is 
a threat to individual freedom.'' \11\
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    \11\ White House memorandum ``Legal Principles for All 
Administrative Action,'' by Donald F. McGahn II to General Counsels 
and Chief Legal Officers of All Executive Branch Agencies (May 10, 
2018).
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    Second, the 2016 Rule minimized local control. The 2016 Rule also 
adopted a one-size-fits-all approach to admission and accommodation by 
gender identity in temporary shelters, despite significant variation in 
State and local law. In just one example, the Rule requires shelters to 
admit individuals based on self-identification as the only method of 
determining a person's sex. This approach elevates subjective 
assertions by persons seeking accommodation and disallows other factors 
that could be used to objectively verify sex. Recognizing concerns with 
this approach, many states and localities prohibiting transgender 
discrimination require a differing bar in enforcing a nondiscrimination 
claim based on gender identity, as three examples demonstrate.
    Anchorage, Alaska, for example, requires evidence that ``the gender 
identity is sincerely held, core to a person's gender-related self-
identity, and not being asserted for an improper purpose.'' \12\ HUD's 
definition does not require such evidence. In a second example, New 
York City's code prohibits discrimination on the basis an individual's 
gender identity, including for housing accommodations. New York City's 
code defines gender to encompass perceived gender identity.\13\ In 
contrast, HUD's current regulations define gender identity to ignore an 
individual's perceived gender identity. More notably, directly contrary 
to HUD's regulations, New York City's code explicitly excludes 
``shelters for the homeless where such distinctions are intended to 
recognize generally accepted values of personal modesty and privacy or 
to protect the health, safety or welfare of families with children.'' 
\14\ In a third example, Massachusetts public accommodations must 
accommodate individuals based upon their gender identity. Unlike HUD's 
current regulations, Massachusetts law does not contain a reference to 
the gender with which an individual identifies. Instead, it defines 
gender identity to mean ``a person's gender-related identity, 
appearance or behavior, whether or not that gender-related identity, 
appearance or behavior is different from that traditionally associated 
with the person's physiology or assigned sex at birth.'' \15\ Thus, 
this definition contains more objective factors than HUD's current, 
purely self-identified regime. Further, unlike HUD's current 
regulations, Massachusetts law provides that ``gender-related identity 
may be shown by providing evidence including, but not limited to, 
medical history, care or treatment of the gender-related identity, 
consistent and uniform assertion of the gender-related identity or any 
other evidence that the gender-related identity is sincerely held as 
part of a person's core identity. . .'' Finally, in Massachusetts, 
``gender-related identity shall not be asserted for any improper 
purpose. . .'' \16\ while HUD's regulations contain no reference to 
improper purposes. Given this wide policy variation, HUD believes that 
shelters are best able to serve their beneficiaries when they can 
develop their own policies on accommodating those whose gender identity 
conflicts with their biological sex and that the issuance of the 2016 
prescriptive rule was not appropriate.
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    \12\ Anchorage Municipal Code Sec.  5.020.010, available at: 
https://library.municode.com/ak/anchorage/codes/code_of_ordinances?nodeId=TIT5EQRI_CH5.20UNDIPR_5.20.0 10DE; see 
also, Devin Kelly, Discrimination complaint against downtown 
Anchorage women's shelter opens up political front (March 14, 2018), 
available at:  https://www.adn.com/alaska-news/anchorage/2018/03/14/discrimination-complaint-against-downtown-anchorage-womens-shelter-opens-up-political-front/ (``The law requires the person to prove, 
through medical history and evidence of care or treatment of their 
gender identity, that their gender identity is ``sincerely held, 
core to a person's gender-related self identity, and not being 
asserted for an improper purpose.'').
    \13\ See N.Y.C. Admin. Code Sec.  8-102 (``Gender''), available 
at: https://www1.nyc.gov/assets/cchr/downloads/pdf/TITLE_8_Human%20Rights%20Law_May%202019.pdf. (Gender ``includes 
actual or perceived sex, gender identity and gender expression, 
including a person's actual or perceived gender-related self-image, 
appearance, behavior, expression or other gender-related 
characteristic, regardless of the sex assigned to that person at 
birth.'')
    \14\ N.Y.C. Admin. Code section 8-107(5)(k) (``Applicability''), 
available at: https://www1.nyc.gov/assets/cchr/downloads/pdf/TITLE_8_Human%20Rights%20Law_May%202019.pdf. New York City's 
Department of Homeless Services has recently issued binding guidance 
to require placement of individuals based on their self-professed 
gender identity. See NYC Department of Homeless Services, Office of 
Policy, Procedures and Training, DHS-PB-2019-015 (July 15, 2019), 
available at: https://www1.nyc.gov/assets/dhs/downloads/pdf/dhs_policy_on_serving_transgender_non_binary_and_intersex_clients.pdf
. However, this guidance only applies to locally-funded shelters.
    \15\ See Mass. Gen. Laws ch. 22C, section 32, available at: 
https://malegislature.gov/laws/generallaws/parti/titleii/chapter22c/section32.
    \16\ See Mass. Gen. Laws ch. 4, section 7, available at: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4/section7.
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    By adopting a less prescriptive approach, HUD's new proposed rule 
better reflects constitutional principles of democracy and federalism. 
The current approach requires that shelters admit and accommodate 
individuals on the basis of their gender identity, even though more 
than 30 states do not have such a requirement. It also prescribed the 
means by which shelters had to determine an individual's gender 
identity (self-identification), even though states have differing 
approaches to this issue, not to mention localities. As this 
President's Executive Order 13132, ``Federalism,'' explains, ``issues 
that are not national in scope or significance are most appropriately 
addressed by the level of government closest to the people,'' and that 
the ``national government should be deferential to the States when 
taking action that affects the policymaking of the States. . .'' \17\ 
HUD believes the best way to fulfill this federalism mandate--
particularly in a difficult issue like this with a lack of clear 
national

[[Page 44814]]

consensus--is to refrain from enforcing a national solution.
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    \17\ Executive Order 1313132, ``Federalism,'' 64 FR 43255, 
August 10, 1999.
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    Third, the 2016 Rule burdened those shelters with deeply held 
religious convictions.\18\ Although not discussed in the 2016 Rule, the 
prescriptive approach to admission and accommodation on the basis of 
gender identity raises concerns about burdens on faith-based shelter 
providers. In some faith traditions, sex is viewed as an immutable 
characteristic determined at birth. Thus, legally compelled 
accommodation determined on a basis in conflict with the provider's 
beliefs could violate religious freedom precepts. For example, Hope 
Center in Alaska, a faith-based homeless shelter for women, sued in 
Federal District Court to prevent the application of a local law that 
would require them to serve biological males who identify as 
females.\19\ Hope Center believes that doing so would violate their 
sincerely held religious belief that the Bible teaches that God creates 
people male or female and ``that it should care for women who lack 
shelter,'' thus excluding men.\20\ Hope Center believes that the 
application of laws like HUD's 2016 Rule violate the First Amendment's 
Free Exercise Clause. HUD's 2016 Rule raises the same potential issue 
of coercing ministries like Hope to ``abandon [their] mission and 
message. . .'' \21\ in order to participate in government-funded 
programs.
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    \18\ See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights 
Comm'n, 138 S. Ct. 1719, 1723 (2018) (``The case presents difficult 
questions as to the proper reconciliation of at least two 
principles. The first is the authority of a State and its 
governmental entities to protect the rights and dignity of gay 
persons who are, or wish to be, married but who face discrimination 
when they seek goods or services. The second is the right of all 
persons to exercise fundamental freedoms under the First Amendment, 
as applied to the States through the Fourteenth Amendment. The 
freedoms asserted here are both the freedom of speech and the free 
exercise of religion.'').
    \19\ See James Brooks, Municipality of Anchorage will pay 
$100,001 to settle transgender-discrimination lawsuit involving 
homeless shelter (October 1, 2019), available at:  https://www.adn.com/alaska-news/anchorage/2019/10/01/municipality-of-anchorage-will-pay-100001-to-settle-transgender-discrimination-lawsuit-involving-homeless-shelter/.
    \20\ For a full discussion of their religious beliefs, see The 
Downtown Soup Kitchen v. Municipality of Anchorage, No. 3:18-cv-
00190-SLG, Dkt. No. 1, ``Verified Complaint'', available at: https:/
/adflegal.blob.core.windows.net/mainsite-new/docs/default-source/
documents/legal-documents/the-downtown-soup-kitchen-dba-downtown-
hope-center-v.-municipality-of-anchorage/hope-center-v-anchorage--
complaint.pdf?sfvrsn=9536cb21_4 pp. 8-10; see also Alliance 
Defending Freedom For Faith and Justice, Downtown Hope Center v. 
Municipality of Anchorage, et al., available at: https://
adflegal.blob.core.windows.net/mainsite-new/docs/default-source/
documents/resources/media-resources/cases/the-downtown-soup-kitchen-
d-b-a-downtown-hope-center-v.-municipality-of-anchorage/hope-center-
v-anchorage--one-page-summary.pdf?sfvrsn=fa9b07be_6.
    \21\ The Downtown Soup Kitchen v. Municipality of Anchorage, No. 
3:18-cv-00190-SLG, Dkt. No. 1, ``Verified Complaint'', available at: 
 https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/legal-documents/the-downtown-soup-kitchen-dba-downtown-hope-center-v.-municipality-of-anchorage/hope-center-v-anchorage-complaint.pdf?sfvrsn=9536cb21 4.
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    The lack of attention in HUD's 2016 Rule to religious liberty is 
problematic because the Department of Justice has emphasized that ``to 
the greatest extent practicable and permitted by law, religious 
observance and practice should be reasonably accommodated in all 
government activity.'' \22\ In some instances, accommodations of 
religious objections are necessitated by protections in the First 
Amendment's Free Exercise Clause.\23\ In other instances, religious 
accommodations may be undertaken in furtherance of a secular 
governmental goal that is not designed to advance or further 
religion.\24\ And yet, to protect their religious practice, shelters 
currently must seek individual, specific waivers under the Religious 
Freedom Restoration Act or potentially under the Secretary's general 
waiver authority,\25\ which can be both time consuming and burdensome. 
Further, the 2016 Rule's approach discourages some religious providers 
from accepting HUD funding at all, to avoid being forced to either 
comply with the rule or the need to request a waiver. The large 
percentage of single-sex facilities sponsored by religious 
organizations that do not participate in HUD programs may reflect the 
burden or perceived burden of both current HUD requirements and the 
waiver process. Instead of continuing a piecemeal and ineffective way 
of accounting for religious beliefs, HUD proposes a policy that will 
respect the religious beliefs of shelters as they develop the 
admissions and accommodations policy, provided that each policy is 
consistent with state and local law. By respecting the religious 
beliefs of shelters, HUD, can better provide wide availability of 
shelters to participate in the program.
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    \22\ Federal Law Protections for Religious Liberty, 82 FR 206 
(October 6, 2017).
    \23\ The protection of the Free Exercise Clause extends to acts 
undertaken in accordance with sincerely held beliefs. The First 
Amendment guarantees the freedom to ``exercise'' religion, not just 
the freedom to ``believe'' in religion. Jurisprudence concerning 
this important area of law is complex and continues to develop. See 
Fulton v. City of Phila., 922 F.3d 140 (3rd Cir.), cert. granted, 
2020 U.S. LEXIS 961 (U.S. Feb. 24, 2020) (No. 19-123). HUD believes 
it is appropriate to take steps to ensure that rights under the Free 
Exercise Clause are not infringed.
    \24\ The Supreme Court has said that `` `there is room for play 
in the joints' between the Clauses, some space for legislative 
action neither compelled by the Free Exercise Clause nor prohibited 
by the Establishment Clause.'' Cutter v. Wilkinson, 544 U.S. 709, 
719 (2005) (internal quotation and citation omitted).
    \25\ 42 U.S.C. 3535(q).
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    Fourth, the 2016 Rule has manifested privacy issues. The current 
rule gives little consideration to the shelter's need to take care of 
the mental health and privacy concerns of at-risk clients, particularly 
``the special needs of program residents that are victims of domestic 
violence'' along with ``dating violence, sexual assault, and 
stalking.'' \26\ A shelter may want to reduce unwelcome or accidental 
exposure to, or by, persons of the opposite biological sex where either 
party may be in a state of undress--such as in changing rooms, shared 
living quarters, showers, or other shared intimate facilities--to 
address privacy concerns which must be considered and respected.\27\ 
Such a desire, which is critical in providing care for vulnerable 
populations, currently requires shelters to forego HUD assistance.
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    \26\ NAHRO Comment Letter, available at:https://www.regulations.gov/document?D=HUD-2015-0104-0083.
    \27\ United States v. Virginia, 518 U.S. 515, 550 n.19 (1996) 
(``Admitting women to [an all-male school] would undoubtedly require 
alterations necessary to afford members of each sex privacy from the 
other sex in living arrangements''); Fortner v. Thomas, 983 F.2d 
1024, 1030 (11th Cir. 1993) (``[M]ost people have a special sense of 
privacy in their genitals, and involuntary exposure of them in the 
presence of people of the other sex may be especially demeaning or 
humiliating.''); Fair Housing Council v. Roommate. Com, LLC, 666 
F.3d 1216, 1221 (9th Cir. 2012) (``As roommates often share 
bathrooms and common areas, a girl may not want to walk around in 
her towel in front of a boy.'').
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    This need for privacy is especially strong among women who have 
``deeper psychological issues that prevent them from cohabitating with 
those of the opposite sex.'' \28\ Homeless women have all too often 
been the subject of sexual abuse and assault. One study found that 
``92% of a racially diverse sample of homeless mothers had experienced 
severe physical and/or sexual violence at some point in their lives . . 
.'' and another found that ``13% of homeless women reported having been 
raped in the past 12 months and half of these were raped at least 
twice. . .'' \29\ Further, between 22% and 55% of women are homeless 
because of intimate partner violence.\30\ Given these

[[Page 44815]]

jarring statistics, some homeless women would be expected to distrust 
and feel unsafe around biological men, even though they self-identify 
as women.
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    \28\ NAHRO Comment Letter, available at:  https://www.regulations.gov/document?D=HUD-2015-0104-0083.
    \29\ https://vawnet.org/sites/default/files/materials/files/2016-09/AR_SAHomelessness.pdf.
    \30\ U.S. Department of Health & Human Services, Administration 
for Children & Families, Family & Youth Services Bureau. ``Domestic 
Violence and Homelessness: Statistics (2016).'' Published, June 24, 
2016, accessed March 21, 2017. Available at: https://www.acf.hhs.gov/fysb/resource/dvhomelessnessstats2016 (cited by 
https://womensliberationfront.org/wp-content/uploads/2019/04/MAILED-Copy-of-Hands-Across-the-Aisle-Letter-to-HUD_dated-5-1-17.pdf).
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    HUD does not believe it is beneficial to institute a national 
policy that may force homeless women to sleep alongside and interact 
with men in intimate settings--even though those women may have just 
been beaten, raped, and sexually assaulted by a man the day before. The 
2016 Rule minimized the shelter's ability to protect the privacy 
interest of shelter seekers, not so that the shelter can better serve 
transgender individuals, but so that the shelter is forced to admit any 
individual who claims to be the gender the shelter serves.
    While HUD is not aware of data suggesting that transgender 
individuals pose an inherent risk to biological women, there is 
anecdotal evidence that some women may fear that non-transgender, 
biological men may exploit the process of self-identification under the 
current rule in order to gain access to women's shelters. This could 
harm individuals in need of shelter by chilling their participation in 
HUD programs. For example, in Alaska, ``women have told shelter 
officials that if biological men are allowed to spend the night 
alongside them, `they would rather sleep in the woods,' even in extreme 
cold. . .with temperatures hovering around zero.'' \31\ HUD is also 
aware of a pending civil complaint in Fresno, California from nine 
homeless women against Naomi's House, a homeless shelter that receives 
HUD funding. These women allege that the shelter enabled sexual 
harassment because a biological male who self-identified as a female 
entered a homeless shelter and showered with females. This individual 
would ``repeatedly make lewd and sexually inappropriate comments to 
some of the Plaintiffs,'' ``stare and leer at Plaintiffs while naked 
and make sexually harassing comments about their bodies,'' and show 
``sexual pictures and/or videos of [the individual] and mak[e] sexual 
advances on some of the pictures and/or videos of [the individual] and 
mak[e] sexual advances on some of the Plaintiffs.'' \32\
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    \31\ Rachel D'Oro, Faith-based shelter fights to keep out 
transgender women (January 11, 2019), available at:https://www.apnews.com/85494d367c2d4a38b1749f76a89f49c3.
    \32\ McGee v. Poverello House, No. 1:18-cv-00768-LJO-SAB, 2018 
U.S. Dist. LEXIS 189174, at *3 (E.D. Cal. Nov. 5, 2018).
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    The 2016 Rule attempted to address privacy and security through 
post-admission accommodations and procedures, but this has proven 
unworkable for too many shelters without alternative options to address 
practical and privacy concerns. Shelters operate in difficult 
conditions, often with troubled clientele, through overburdened and 
sometimes volunteer staff, and the current rule makes it impracticable 
for some shelters to, after admitting a biological male, adequately 
protect the privacy interests of their biological female clientele who 
do not want to shower, undress, and sleep in the same facilities as 
biological men. While HUD argued in 2016 that shelters could address 
privacy concerns through ``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,'' \33\ HUD believes that 
this is not an option for many shelters, whose budgets, staff, and 
space are already limited.
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    \33\ 81 FR 64763, September 21, 2016.
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    HUD recognizes that shelters must also take special care to address 
the mental health and safety needs of transgender individuals. HUD is 
aware that transgender individuals experience poverty, housing 
instability, mental health issues, domestic violence, and homelessness 
at high rates. Given the rates of violence and mistreatment that 
homeless transgender persons experience, HUD recognizes that shelter 
access for transgender persons is critical. Thus, the proposed rule 
requires that if a shelter denies access to a person based on a 
determination of sex, the shelter must utilize the CoC's centralized or 
coordinated assessment system to provide a transfer recommendation to 
an alternative shelter or accommodation.
    Shelters may also choose to admit individuals on criteria other 
than biological sex. For example, under the proposed rule, a single-sex 
facility could continue to operate under the policy set forth in the 
2016 Rule. Under that policy, an intake worker at a single-sex 
homelessness facility would ask an individual their gender identity, 
and if the person identified themselves with the gender served by the 
facility, they would be admitted. Under the proposed rule, a single-sex 
facility for women could have a policy that only admits biological 
women. A shelter would have the flexibility to implement this policy as 
they feel appropriate, provided that they only deny an individual 
seeking accommodation or access to the temporary, emergency shelters 
when they have a good faith belief that individual is not of the sex 
which the shelter's policy accommodates and they provide a transfer 
recommendation as required under the regulation. Denial of 
accommodation solely because of a person's gender identity that differs 
from biological sex is not permitted.
    Shelters could also have policies that follow state or local law, 
such as perceived gender identity, that varies from the HUD definition 
of self-identified gender identity. Other possible policies could be 
based on medical transition status, active hormone therapy or state 
recognized gender status. The key test for such policies is whether if 
another shelter adopted a ``mirror'' policy (that is, the same policy 
but directed at the other sex), any person not accommodated at one 
shelter would be accommodated at the other shelter.
    In practice, where people seeking shelter are asked their sex at 
intake into the facility, and if they identify themselves as the sex 
that is served by the shelter, they are admitted unless the shelter has 
a good faith basis to doubt the consistency of the sex asserted with 
the sex served by the shelter, determined in accordance with its own 
policy. Where such doubt exists, the shelter could also have a list of 
possible sources of evidence the shelter seeker could provide such as a 
birth certificate, other identification, or medical records. This could 
occur at intake or subsequently, if the shelter resident is unable to 
verify their sex, the shelter would work through the centralized or 
coordinated assessment system to provide a transfer recommendation for 
another shelter.
    This approach would better protect shelter clients as well. Under 
HUD's 2016 Rule, while privacy accommodations may sometimes be 
available for individuals who need additional privacy, ``alternative 
accommodations can only be offered when an individual requests it, and 
under these proposed regulations, housing providers are likely only 
left with the option of moving the domestic violence victim resident. 
But some individuals may hesitate to raise their concerns, for fear of 
retaliation by the service provider or because they do not know whether 
privacy accommodation is an available option. HUD believes the easier 
approach would be to let shelters accommodate privacy concerns in a

[[Page 44816]]

manner that causes the least overall disruption to residents.
    Finally, the 2016 Rule imposed regulatory burdens. The rule imposes 
several different types of regulatory burdens. It imposes a special 
document retention requirement applicable to determinations of ``sex'' 
that is burdensome and not supported either by statute or practice. 
This burden is inconsistent with Executive Orders directing agencies to 
``alleviate unnecessary regulatory burdens placed on the American 
people,'' \34\ and ``manage the costs associated with the governmental 
imposition of private expenditures required to comply with Federal 
regulations.'' \35\ Additionally, as discussed above in the fourth 
point, shelters may not have the resources to build individual privacy 
screens or single occupant restrooms and bathing facilities to address 
any privacy concerns that may arise.
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    \34\ Executive Order 13777, ``Enforcing the Regulatory Reform 
Agenda,'' 82 FR 12285, March 1, 2017.
    \35\ Executive Order 13771, ``Reducing Regulation and 
Controlling Regulatory Costs,'' 82 FR 9339, Feb. 3, 2017.
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    These regulatory burdens could have a material impact on the 
availability of homelessness services. HUD's Emergency Solutions Grants 
program and other CPD programs provide a small share of the funding 
that is used for emergency shelters. For example, in fiscal year 2019, 
HUD's Emergency Solutions Grants program provided $290 million in 
funding. In contrast, with nearly 300,000 emergency shelter beds and 
costs ranging from $14 to $61 per bed-night for individuals and more 
for families, overall spending for emergency shelter is several billion 
dollars per year.
    The lack of shelter capacity in many communities contributes to 
high numbers of people who experience unsheltered homelessness. Local 
governments and nonprofit organizations utilize any potential space to 
use as shelter, and many times, these shelters operate under severe 
financial constraints. Providing additional options for operating 
single-sex facilities as proposed by this rule may encourage more 
emergency shelters to participate in HUD's programs and prevent the 
loss of emergency shelter capacity. The additional funding could be 
used to upgrade facilities and services, improving the quality of 
assistance for people experiencing homelessness.

IV. Summary of Proposed Rule

    This proposed rule would revise Sec.  5.106(c)(1) to expressly 
allow a recipient, subrecipient, owner, operator, manager, or provider 
to establish its own policies for determining whether to restrict 
access based on an individual's sex for the purposes of determining 
admissions and accommodation within a single-sex facility. Such a 
policy could align with, or borrow from, a state or local government's 
policy for determining an individual's sex,\36\ but is not required to 
do so. The rule also provides in paragraph (c)(1) that such policies 
must be consistent with federal, state, and local law. Under paragraph 
(c)(2) a recipient, subrecipient, owner, operator, manager, or provider 
is permitted to take into account a wide variety of factors in issuing 
a policy, including privacy, safety, and similar concerns.
---------------------------------------------------------------------------

    \36\ See, e.g., Iowa state law for determining sex designation 
change. Iowa Code Ann. 144.23.
---------------------------------------------------------------------------

    Proposed paragraph (c)(3) would restrict how a single-sex facility 
would apply the policy drafted under paragraph (c)(1) and require the 
single-sex facility to apply its policy uniformly and consistently. It 
would also provide that a recipient, subrecipient, owner, operator, 
manager, or provider may determine an individual's sex based on a good 
faith belief that an individual seeking access to the temporary, 
emergency shelters is not of the sex, as defined in the single-sex 
facility's policy, which the facility accommodates. HUD would consider 
this good faith beliefs sufficient to show that a decision maker was 
not discriminating for purposes of determining compliance based on an 
individual's actual or perceived gender identity in Sec.  5.105(a)(2). 
HUD believes that reasonable considerations may include, but are not 
limited to a combination of factors such as height, the presence (but 
not the absence) of facial hair, the presence of an Adam's apple, and 
other physical characteristics which, when considered together, are 
indicative of a person's biological sex. A good faith determination 
could also be made if a person voluntarily self-identifies as the 
biological sex that is opposite that served by the single sex facility 
if that is a part of its policy. In cases where a recipient, 
subrecipient, owner, operator, manager, or provider has a good faith 
belief that the individual is not of the biological sex served by the 
single-sex facility, the recipient, subrecipient, owner, operator, 
manager, or provider may request evidence of the individual's 
biological sex. Evidence requested must not be unduly intrusive of 
privacy, such as private physical anatomical evidence. Evidence 
requested could include government identification, but lack of 
government identification alone cannot be the sole basis for denying 
admittance on the basis of sex.
    Continuum of Care (CoC) is a regional or local planning group that 
coordinates homelessness services and is generally composed of 
representatives from governments and organizations that focus on 
fighting homelessness. CoCs are responsible for ensuring that people 
experiencing homelessness receive assistance in a coordinated and 
timely fashion. Specifically, CoCs are required to create and implement 
a plan that coordinates implementation of housing and service system 
that meets the needs of people experiencing homelessness (Sec.  
578.7(c)(1)), and the requirement for CoCs, in consultation with a 
local recipient of Emergency Solutions Grants funds to operate a 
coordinated entry system that provides an initial, comprehensive 
assessment of needs for housing and services (Sec.  578.7(a)(8)). To 
help promote these objectives, HUD provides in paragraph (d)(4) of this 
proposed rule that if a single-sex facility denies access to a person 
under this rule based on a good faith belief that a person seeking 
access to the single-sex facility is not of the biological sex which 
the shelter accommodates, a shelter must use the coordinated entry 
system to provide a transfer recommendation to an alternative facility. 
In addition, the rule more broadly provides that if a person objects to 
the provider's policy for determining sex because of the person's 
sincerely held beliefs, then the shelter must also provide a transfer 
recommendation to an alternative shelter.
    Finally, HUD proposes to remove paragraphs (b)(1) through (4), 
inclusively, which currently enumerates the applications of the 
antidiscrimination provision, in favor of a streamlined reference to 
Sec.  5.105(a)(2). Section 105(a)(2) entitles equal access to HUD-
assisted housing by prohibiting determinations for housing eligibility 
from being based on actual or perceived sexual orientation, gender 
identity, or marital status.
    The proposed rule would also eliminate the previously discussed 
burdensome special document retention requirement in the current rule 
applicable to determinations of ``sex.'' This proposed rule does not 
prohibit any individual from voluntarily self-identifying sexual 
orientation or gender identity, as it does not prohibit a shelter, 
under its own policy, from recognizing such self-identification.
    Other than these specified changes, the current regulations would 
remain in effect. HUD believes that a combination of strong anti-
discrimination protections

[[Page 44817]]

and affording grantees a large measure of discretion in an area with 
divergent, deeply held and substantially supported views offers the 
broadest workable protection for individuals, including transgender 
individuals.
    This proposed rule would also amend Sec.  576.400(e)(3)(iii) to add 
language allowing for exceptions as authorized under Sec.  5.106 to 
written standards for HUD's Emergency Solutions Grant Program.

Request for Comments

    1. HUD is maintaining the nondiscrimination protections from its 
2012 rule, even though they lack an explicit statutory authorization, 
because HUD is not aware of any relevant party that has raised any 
material concerns about the 2012 rule. HUD believes all federally 
supported housing opportunities should be provided to all in a 
nondiscriminatory manner, including for sexual orientation and gender 
identity. HUD specifically seeks comments on whether HUD should 
maintain the anti-discrimination protections?
    2. HUD requests comments on what are good faith considerations that 
are indicative of a person's biological sex. Should HUD define what 
constitutes a good faith belief for determining biological sex and what 
type of evidence would be helpful for determining an individual's 
biological sex? How, if at all, should government IDs be considered?
    3. CoCs are responsible for creating and implementing a plan that 
coordinates the housing and service system that meets the needs of 
people experiencing homelessness (including unaccompanied youth) and 
families and includes, shelter, housing, and supportive services (Sec.  
578.7(c)(1)). HUD is proposing that for people who are denied access to 
shelter because of a policy regarding admission or placement in single-
sex facilities, the shelter must provide a transfer recommendation for 
individuals to the Coordinated Entry provider for the Continuum of 
Care. HUD is also seeking comment on what requirements, if any, HUD 
should include in the final rule to ensure that shelter policies are 
coordinated and implemented in a way that allows all persons 
experiencing homelessness in the geographic area (including persons 
with disabilities) to be served timely and in a non-discriminatory 
manner? Is the requirement of providing a transfer recommendation 
unduly burdensome or does it otherwise pose operational challenges?

V. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects; distributive impacts; and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. Under Executive Order 12866 (Regulatory Planning 
and Review), a determination must be made whether a regulatory action 
is significant and, therefore, subject to review by the Office of 
Management and Budget (OMB) in accordance with the requirements of the 
order.
    The proposed rule has been determined to be a ``significant 
regulatory action,'' as defined in section 3(f) of the Order, but not 
economically significant under section 3(f)(1) of the Order. The docket 
file is available for public inspection in the Regulations Division, 
Office of General Counsel, Department of Housing and Urban Development, 
451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to 
security measures at the HUD Headquarters building, please schedule an 
appointment to review the docket file by calling the Regulations 
Division at 202-402-3055 (this is not a toll-free number). Individuals 
who are deaf or hard of hearing and individuals with speech impairments 
may access this number via TTY by calling the Federal Relay Service at 
800-877-8339 (this is a toll-free number).

Executive Order 13771

    Executive Order 13771, entitled ``Reducing Regulation and 
Controlling Regulatory Costs,'' was issued on January 30, 2017. Section 
2(a) of Executive Order 13771 requires an Agency, unless prohibited by 
law, to identify at least two existing regulations to be repealed when 
the Agency publicly proposes for notice and comment or otherwise 
promulgates a new regulation. In furtherance of this requirement, 
section 2(c) of Executive Order 13771 requires that the new incremental 
costs associated with new regulations shall, to the extent permitted by 
law, be offset by the elimination of existing costs associated with at 
least two prior regulations. This proposed rule is expected to be a 
deregulatory action under Executive Order 13771 by providing 
flexibility for grantees in determining their policies.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (UMRA) establishes requirements for Federal 
agencies to assess the effects of their regulatory actions on state, 
local, and tribal governments, and on the private sector. This proposed 
rule does not impose any Federal mandates on any state, local, or 
tribal government, or on the private sector, within the meaning of the 
UMRA.

Environmental Review

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

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. 
The number of entities that would be affected by this rule is limited 
to entities who can legally operate single-sex facilities and would 
change or establish policy as a result of the accommodation needs 
addressed by this rule. HUD does not have the exact number of entities 
that would be affected. However, as an example, approximately out of 
the 1,900 emergency shelters are funded by HUD programs. Out of this 
1,900, HUD does not know how many of those would issue a new policy. 
Nor does HUD know how many of those are small entities. HUD 
specifically requests from the public any information about the number 
of small entities that might be impacted.
    Furthermore, HUD anticipates that entities who develop a policy as 
a result of this rule will generally face only a small burden in 
determining and establishing an organizational policy. Accordingly, for 
the foregoing reasons, the undersigned certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Notwithstanding HUD's determination that this proposed rule 
would not have a significant effect on a substantial number of small 
entities, HUD specifically invites comments on

[[Page 44818]]

whether it will not have a significant effect and regarding any less 
burdensome alternatives to this rule that will meet HUD's objectives.

Executive Order 13132, Federalism

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

List of Subjects

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.

24 CFR Part 576

    Community facilities, Grant programs-housing and community 
development, Grant programs-social programs, Homeless, Reporting and 
recordkeeping requirements.
    Accordingly, for the reasons stated above, HUD proposes to amend 24 
CFR parts 5 and 576 as follows:

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

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

    Authority:  12 U.S.C. 1701x; 42 U.S.C. 1437a, 1437c, 1437d, 
1437f, 1437n, 3535(d); Sec. 327, Pub. L. 109-115, 119 Stat. 2936; 
Sec. 607, Pub. L. 109-162, 119 Stat. 3051 (42 U.S.C. 14043e et 
seq.); E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258; and E.O. 
13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 273.

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


Sec.  5.100   Definitions.

* * * * *
    Gender identity means actual or perceived gender-related 
characteristics. * * *
* * * * *
0
3. In Sec.  5.106, revise the section heading and paragraphs (b) and 
(c), and remove paragraph (d) to read as follows:


Sec.  5.106   Access in community planning and development programs.

* * * * *
    (b) Access. The admissions, occupancy, and operating policies and 
procedures of recipients, subrecipients, owners, operators, managers, 
and providers identified in paragraph (a) of this section shall be 
established or amended, as necessary, and administered in a 
nondiscriminatory manner to ensure that eligibility determinations are 
made, and assisted housing is made available in CPD programs as 
required by Sec.  5.105(a)(2).
    (c) Admission and accommodation in temporary, emergency shelters 
and other buildings and facilities with shared sleeping quarters or 
shared bathing facilities--(1) Admission and accommodation policies. 
Recipients, subrecipients, owners, operators, managers, or providers of 
temporary, emergency shelters or other buildings and facilities with 
physical limitations or configurations may make admission and 
accommodation decisions based on its own policy for determining sex if 
the policy is consistent with paragraphs (c)(2) through (4) of this 
section. Any such policy must be consistent with federal, state, and 
local law.
    (2) Privacy and safety considerations. The policy of a recipient, 
subrecipient, owner, operator, manager, or provider established 
pursuant to paragraph (c)(1) of this section may consider privacy, 
safety, and any other relevant factors.
    (3) Application of the policy. A recipient, subrecipient, owner, 
operator, manager, or provider must apply any policy established 
pursuant to paragraph (c)(1) of this section in a uniform and 
consistent manner. A recipient, subrecipient, owner, operator, manager, 
or provider may deny admission or 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 based on a good faith 
belief that an individual seeking accommodation or access to the 
temporary, emergency shelters is not of the sex which the shelter's 
policy accommodates. If a temporary, emergency shelter has a good faith 
belief that a person seeking access to the shelter is not of the sex 
which the shelter accommodates, the shelter may request information or 
documentary evidence of the person's sex, except that the shelter may 
not request evidence which is unduly intrusive of privacy.
    (4) Transfer recommendation. If a temporary, emergency shelter 
denies admission or accommodations based on a good faith belief that a 
person seeking access to the shelter is not of the sex which the 
shelter accommodates as determined under its policy, the shelter must 
use the centralized or coordinated assessment system, as defined in 
Sec.  578.3 of this title, to provide a transfer recommendation to an 
alternative shelter. If a person states to the temporary, emergency 
shelter that the provider's policy for determining sex is inconsistent 
with the person's sincerely held beliefs, including privacy or safety 
concerns, then the shelter must use the centralized or coordinated 
assessment system, as defined in Sec.  578.3 of this title, to provide 
a transfer recommendation to an alternative shelter.

PART 576--EMERGENCY SOLUTIONS GRANTS PROGRAM

0
4. The authority for 24 CFR part 576 continues to read as follows:

    Authority:  12 U.S.C. 1701x, 1701 x-1; 42 U.S.C. 11371 et seq., 
42 U.S.C. 3535(d).


Sec.  576.400   [Amended]

0
5. In Sec.  576.400, add the parenthetical ``(these policies must allow 
for the exceptions as authorized under the Equal Access Rule, 24 CFR 
5.106)'' at the end of paragraph (e)(3)(iii).

    Dated: July 2, 2020.
Benjamin S. Carson, Sr.,
Secretary.
[FR Doc. 2020-14718 Filed 7-23-20; 8:45 am]
BILLING CODE 4210-67-P