Trump transgender rules clash with state law
A transgender flag is waved at a solidarity rally last month in San Francisco. Transgender rights groups are expected to sue to try to block the Trump administration’s new homeless shelter rules.
The Trump administration’s proposal to allow singlesex homeless shelters to exclude transgender residents would impact a population that is already far more likely than others to be homeless. But even if it takes effect nationwide, the rule announced Friday will probably never be implemented in California because of state law.
A longstanding California law prohibits property owners from refusing to “sell, rent or lease housing accommodations” because of sex, a category that also covers gender identity, according to last month’s landmark U.S. Supreme Court ruling on LGBT rights at work. And a state civil rights law, last modified in 1988, entitles Californians to “full and equal accommodations, advantages, facilities, privileges or services in all business establishments,” regardless of their sexual orientation or gender.
“California law prohibits gender identity discrimination by homeless shelters and that protection is not affected by (the Trump administration’s) proposed rule,” said Fahizah Alim, spokeswoman for the state
Department of Fair Employment and Housing. The department instructs shelters that they must grant all residents and applicants “equal access to programs and facilities consistent with (their) gender identity.”
San Francisco has a more specific ordinance that forbids discrimination based on gender identity in housing, including shelters, said Clair Farley, director of San Francisco’s Office of Transgender Initiatives and a senior adviser to Mayor London Breed.
“This rule, despite being illegal, sends a message to shelters that they have a right to discriminate even though they don’t,” Farley said in an interview.
Breed tweeted that “this new proposal to encourage homeless shelters to discriminate is as heartless as it is lawless.”
The Trump administration argued that its rule, scheduled to take effect in 60 days, would protect women at homeless shelters from occupants who were born male. In a letter quoted by the New York Times, U.S. Housing and Urban Development Secretary Ben Carson said the rule he wants to replace “permits any man, simply by asserting that his gender is female, to obtain access to women’s shelters.”
But Matthew Coles, a law professor at UC Hastings in San Francisco, said the proposed rule appears unenforceable in California, and any other state with similar laws, and quite possibly nationwide as well.
Some federal courts have ruled that the U.S. Fair Housing Act, which prohibits housing discrimination based on race, sex and national origin, among other categories, applies to homeless shelters, Coles said.
“I think the rule is likely a violation” of that law, he said.
Another law professor, Luke Boso of the University of San Francisco, said the federal law applies only to “dwellings” and that courts would have to decide whether a homeless shelter is a dwelling.
The Trump administration has also banned virtually all transgender military service, reversing a policy of former President Barack Obama. Another rule, allowing employers to deny health coverage to lesbian, gay, bisexual or transgender employees, appears likely to be struck down as an act of sex discrimination based on the Supreme Court’s recent ruling.
Legal arguments aside, the proposed new rule on homeless shelters is aimed at a population already suffering housing woes.
The National Center for Transgender Equality said its 2015 survey of more than 25,000 transgender Americans found that 30% reported having been homeless at some time in their lives. Of those who had stayed in a shelter in the previous year, 70% said they had suffered some form of discrimination — such as harassment, assault or eviction — because of their gender identity.
In San Francisco, Farley said, transgender residents are 18 times as likely to be homeless as the rest of the population.
“HUD is putting trans people who are most affected by homelessness, especially trans people of color, in danger,” said Kris Hayashi, executive director of the Transgender Law Center in Oakland. He said the proposal “will likely deter homeless trans people from trying to access shelters, for fear of being misgendered or encountering violence.”
“Trans community members have been getting hassled in shelters since the first day we opened them in 1982,” said Paul Boden, a former shelter resident who directed the San Francisco Coalition on Homelessness for 16 years. He now heads the Western Regional Advocacy Project and is a board member of the National Coalition for the Homeless.
Instead of addressing those problems, Boden said, the administration seeks to “further stigmatize and discourage trans people from even seeking shelter.” And, he added, “the answer to homelessness is a home,” not a shelter.
San Francisco has some unique refuges for vulnerable populations. Jazzie’s Place, named for the late transgender activist Jazzie Collins and operated by Dolores Street Community Services, is a 24bed facility in the Mission District that was the nation’s first homeless shelter for adult LGBT residents when it opened in 2015.
Last year, a threebedroom Victorian home in the HaightAshbury neighborhood reopened as Belvedere, the nation’s first longterm transitional living program for transgender young people. Its six residents are provided educational and jobtraining assistance and up to two years of housing while coping with stress and looking to move on with their lives.
“San Francisco is seen as sort of a safe haven, but it’s not very welcoming to anyone experiencing homelessness, much less anyone who is trans and experiencing homelessness,” said Clare Armbruster, development director for Larkin Street Youth Services, which funds and manages the project.
Hayashi, of the Transgender Law Center, sounded the same theme.
“We’re fortunate in the Bay Area to have so many services for trans people that other areas of the country don’t have,” he said. “Still, trans people continue to face discrimination and violence, even here in the Bay Area.”