As the Trump Administration Cements Policy Priorities, LGBTQ+-Affirming Housing Comes Under Scrutiny

Amidst constant political noise in Washington, it can be easy to overlook the administrative minutiae that govern the impacts of federally assisted programs. These rules enact federal policy priorities and shape the lives of both residents and housing providers. While national media focus on headline issues related to national security and trade, administrative actions with significant impact may often go unnoticed.

One such federal rule, with limited publicity but significant social impact, is the “Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs,” also known as the Equal Access Rule (EAR). The EAR, first introduced in 2012 and updated in 2016, grants certain gender-based rights and protections to individuals and families seeking HUD-assisted housing, preventing discrimination against individuals “regardless of sexual orientation, gender identity or marital status,” says Josh Dubensky, housing policy advocate for SAGE, a national LGBTQ+ advocacy and aging services organization that started in 1978 to advocate for equity in the treatment of LGBTQ+ seniors.

Today, the decade-old regulation is in limbo after a series of internal decisions from the current Trump administration have left the EAR unenforced and under threat of repeal or replacement. Specifically, as part of President Trump’s historically active first day in office, the EAR was called out for rescission by Executive Order 14168. Afterward, Department of Housing and Urban Development (HUD) Secretary Turner announced that the agency would no longer enforce EAR provisions.

HUD began the process to formally rescind or replace the rule in mid-February, but as of today, it has not moved further in the process. Dubensky says this approach leaves residents, service providers, and housing providers in a “scary place, as courts continue to take a long time to figure out where things are going to fall.”

Advocates Push for Importance of LGBTQ+-Affirming Housing
The original EAR came about when President Obama shifted toward more civil rights protections for LGBTQ+ individuals at the beginning of his second term in 2012. Initially, the rule was more limited in scope. Still, the 2016 update clarified that access to single-sex shelters and gender-restricted housing should be based on gender identity, not sex assigned at birth. “The rule clarified and guaranteed continued access to those types of services,” such as shelter for unhoused individuals or residence for those fleeing from domestic violence.

Although the EAR is “one of the few federal protections in place for the LGBTQ+ community,” Dubensky stresses that EAR protections increase safety and dignity for all individuals seeking HUD-supported housing and shelter. For example, “the EAR guarantees that a man cannot be separated from his female child when seeking shelter. So, it helps keep traditional families together,” as well, he says.

Still, the protections in place for the LGBTQ+ community—and particularly trans residents—Dubensky says that the EAR has been a vital lifeline to housing and shelter. “For trans individuals, many have, in the past, chosen to sleep on the streets rather than risk being forced into a shelter that doesn’t understand and respect their identity, which creates a dangerous and sometimes even deadly environment for them,” he says. “The EAR was the support that advocates in the community had been building toward for decades.”

As the National Alliance to End Homelessness (NAEH) explained in a 2020 brief, 63 percent of transgendered individuals experiencing homelessness were unsheltered nationwide, compared to 49 percent for their cisgendered counterparts.

The NAEH brief also indicates that access to shelter is a key indicator of vulnerability when experiencing homelessness. Analyzing various health and behavioral factors, the brief found that unsheltered trans individuals are “significantly more ill” than those in shelters. This ranges from being “forced to do things they do not want to do” (11 percent within shelter, compared to 40 percent without) to experiencing tri-morbidities of co-occurring physical, mental, and substance use disorders (three percent within versus 60 percent without).

Additionally, according to GLAAD, there is scant evidence that integrating transgender and cisgender people in gender-restrictive housing decreases safety.

Winds in Washington Have Shifted
Despite evidence suggesting the benefits of LGBTQ+-affirming housing, the Trump administration has long targeted the EAR for repeal and potential replacement. During President Trump’s first term, this push was unsuccessful. This was because there was less of a coordinated desire to roll back LGBTQ+ protections and a lack of experience in the White House, says Dubensky. “They actually did try to repeal EAR in the first term, but they waited until 2020. And that effort failed – they waited too long and were unprepared for advocate pushback.” Dubensky states that over 50,000 comments were submitted to HUD at that time to support EAR.

However, Dubensky says that priorities shifted heading into President Trump’s second term after a campaign that brought trans issues into acute focus. “This time around, they have really focused on anything that’s LGBTQ+ specific, and especially if it is supportive of the trans community.”

With lessons learned from a first term in which 83 percent of agency actions failed after court review, Dubensky says that the Trump administration has enacted regulatory change using two approaches.

The first, he says, is declaring a national emergency to circumvent certain legal processes and regulations. Typically, several necessary steps must be taken when an administration seeks to challenge or overturn an adopted agency regulation. However, invoking various emergency powers allows the executive branch some administrative flexibility to enact these changes more quickly and unilaterally.

For example, Dubensky points to Trump’s weakening of the Affirmatively Furthering Fair Housing (AFFH) rule, a policy established during the Biden era that requires federally funded housing providers to proactively implement policies to root out discrimination. This rule was targeted after Trump took office, with the new administration leaning on Presidential emergency powers to push a new rule through. “The Trump administration has basically claimed that the situation was so dire that they needed to get the updated rule out for AFFH and had to skip the public comment period.”

Second, Dubensky points to Executive Order 14219, which, citing a handful of recent Supreme Court decisions, empowers executive agencies to skirt review requirements within the Administrative Procedure Act (APA). This consolidates regulatory review within the presidential purview, creating an environment where “the president has the right for first and final review of regulations,” says Dubensky. In large part, according to a White House statement in April, this is intended to expedite regulatory review and bypass otherwise required notice-and-comment proceedings.

There hasn’t been widespread rule rescission, and these administrative actions are still being argued in courts, with SAGE and other legal advocacy organizations claiming that this is an illegally expansive view of presidential power.

Aside from pushbacks against EAR, Dubensky says that LGBTQ+-affirming housing is generally a target of the current administration. For example, after January 20 of this year, HUD removed any content on its website that referenced LGBTQ+ policies as part of a broader federal push. Additionally, HUD’s Office of Fair Housing dropped all cases of trans discrimination as soon as the administration transitioned, and the Equal Employment Opportunity Commission (EEOC) began dropping cases related to transgender discrimination.

Although policies and internal practices have certainly shifted, many of the rules and regulations — such as EAR — remain unchanged. Legal analysts emphasize that, with laws still on the books, employers and housers don’t suddenly have free rein to discriminate.

Indeed, Dubensky says that the current situation creates a Catch-22 for housers, since any action they take puts them at odds with either executive directive or administrative rule. Dubensky points to recent HUD contracts with homeless services providers in the Continuum of Care (CoC) program that required those providers only to recognize potential residents’ birth-assigned genders. “This would have required them to violate the EAR,” he points out.

Those contracts have, in some cases, been blocked by courts. For example, in June, a decision from Judge Barbara Rothstein—the senior judge of the United States District Court for the Western District of Washington—temporarily blocked federal conditions on homeless services for King County, WA.

Advocates Push Back
“In light of all the other dangerous actions targeting the Trans community, if [the Trump administration] were just repealing the EAR, that could almost be considered a win,” says Dubensky, since that would allow providers freedom in how they house trans individuals. “It would still be a step backwards, but with how hard the administration is going after the trans community…and trying to force providers to not only not serve them, but actively discriminate, points that they might be working on updating the EAR in a way that is doing the same thing.” Thus, instead of protecting the rights of LGBTQ+ individuals in need of housing, Dubensky says that a reoriented version of the EAR may be used to create what he says could be a discriminatory policy against trans people.

Dubensky says that SAGE has recently partnered with a “national coalition of partners to protect the EAR when the comment period opens up, and afterwards.”

That coalition—which includes the National Alliance to End Homelessness (NAEH), Advocates for Trans Equality (A4TE), and the Center for LGBTQ Economic Advancement & Research (CLEAR) alongside SAGE—recently released an EAR story collection portal to continue highlighting how the EAR has impacted housing resources for the LGBTQ+ community.

These efforts aim to ensure that advocates are prepared for when the Trump administration finally moves to rescind or weaken the EAR officially. This will trigger the public comment period, which allows individuals and organizations nationwide to provide input on the proposed action. “We don’t know when exactly the public comment period for the EAR will open, but the more people and organizations who are informed and ready, the better chance we have to stop it.”

That’s why, in addition to collecting stories and highlighting voices, Dubensky says that the advocacy partnership also acutely understands the need for a broad support base, not relying solely on the LGBTQ+ community. “We know the arguments we’re going to hear from the Trump administration regarding the LGBTQ+ community,” he says, referencing the administration’s common refrain that the EAR is harmful to women and that it makes the jobs of service providers more difficult. “The best way to counter that is to get those types of voices in partnership with the LGBTQ+ community. We need service providers, housing developers, and anyone involved in housing who can come out, either publicly or anonymously, to submit comments expressing their support for these protections and their endorsement of the EAR. Even if the EAR does not directly impact your work or programs, hearing from voices in the housing world will be key to supporting the rule and the LGBTQ+ community.” Dubensky stresses that comments can be provided anonymously.

Despite a negative outlook, Dubensky hopes the legal process can continue to work itself out. “The Obama/Biden administration followed the law when they implemented and updated the original EAR, and it took almost a year for each implementation. Right now, we just need to ensure that we can fight back the same way.”

This can only be successful, Dubensky says, if advocacy comes from diverse groups. “It isn’t just an LGBTQ+ conversation. We’ve seen a lot of fear from folks who received federal funding because this administration has been very open about their willingness to attack someone who disagrees with them politically by threatening access to federal funding. Whether you are a recipient of federal funding or not, this is an opportunity to support the right of every individual to access safe and affirming shelter.”