The Equal Access Rule
On July 24, 2020, the Trump administration proposed a rule entitled “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs.” This proposed rule, a change to the existing Equal Access Rule, would have been extremely detrimental to transgender and gender nonconforming youth who are homeless. It would support the U.S. Department of Housing and Urban Development (HUD)–sanctioned, federally funded discrimination against transgender individuals who face disproportionately high rates of homelessness and extreme risk when unsheltered. The UCLA Williams Institute Factsheet on LGBT Youth Population in the United States notes there are an estimated 1,994,000 LGBT youth between the ages of 13 and 17, 149,000 of whom are transgender.
Equal access to HUD programs is essential to ensuring the safety and security of transgender individuals who are homeless or at risk of becoming homeless. A significant percentage of transgender homeless individuals are under the age of 21, and LGBTQ homeless youth comprise up to 40 percent of the homeless youth population in the United States. LGBTQ youth are disproportionately represented among homeless youth and are at higher risk of violence, discrimination, and poor health.
According to the National Alliance to End Homelessness Demographic Data Project on Gender Minorities, the Equal Access Rule, with 2016 amendments, is credited with providing safe, welcoming, and supportive environments that help transgender and gender nonconforming individuals connect with necessary community supports and return to housing. One survey measuring gaps in service found that about one in five LGBTQ youth could not access short-term shelter, a figure twice that for non-LGBTQ homeless youth.
In September 2020, the American Bar Association (ABA) submitted a comment in opposition to the proposed rule change arguing that it would create a more dangerous situation for vulnerable transgender individuals, put disproportionately LGBTQ homeless youth at risk, contradict constitutional and federal legal principles, and further distress people during a pandemic that had already caused 200,000 deaths and record job and economic losses.
In April 2021, HUD Secretary Marcia Fudge announced they would be withdrawing the prior administration’s proposed rule change to the Equal Access Rule. She said, “Access to safe, stable housing—and shelter—is a basic necessity.” Unfortunately, transgender and gender nonconforming people report more instances of housing instability and homelessness than cisgender people. Today, we are taking a critical step in affirming HUD’s commitment that no person be denied access to housing or other critical services because of their gender identity.
In collaboration with the Human Rights Campaign, the Civil Rights and Social Justice Section of the ABA is a partner organization in ProjectTHRIVE, a multiyear national campaign to create more equitable, inclusive support systems and communities for LGBTQ youth.
ProjectTHRIVE is a unique effort that brings together diverse national organizations whose professionals serve LGBTQ youth in law, education, health, child welfare, and other disciplines. They work together to strengthen family permanence and support, improve LGBTQ health and well-being, increase school connection, and build a foundation of resilience so that all LGBTQ youth can thrive. Ordinarily, we focus on our own field, disconnected from the ways in which we can organize to achieve common goals. ProjectTHRIVE convenes professionals to bridge gaps in services, making LGBTQ youth the beneficiaries, more effectively combating challenges and breaking barriers.
ProjectTHRIVE is committed to an intersectional approach and to ensuring that LGBTQ youth of color and those who are system-involved or have a history of homelessness are a priority. Participating professionals amplify all partners’ work to focus on combating the health and safety risks faced by LGBTQ youth. Sharing information to educate not only each other but also the general public produces a world of allies and an environment where LGBTQ youth are not merely tolerated but accepted and celebrated. Family rejection is not something we should manage but eliminate. As family conflict and rejection over sexual orientation and gender identity fall away, we begin to defeat problems like LGBTQ youth homelessness.
To learn more about the core goals of ProjectTHRIVE, click here.
Protecting children generates a lot of discussion and even debate. Medical, legal, education, child welfare, and health professionals are on the frontlines working together to intervene on behalf of LGBTQ youth. As lawyers, we have not only the tools but also the obligation to advocate on their behalf, knowing the unique challenges that they face. LGBTQ youth are at risk through no fault of their own. They are multiply marginalized because of their age, their sexual orientation and gender identity, and often by additional factors such as race and ability. Let’s band together to help the next generation THRIVE, not despite their differences, but based on their strengths.