The bishops said the proposed regulation, “though not perfect nor answering all questions … is a step in the right direction toward improving flexibility while respecting all persons’ right to basic shelter, for which we are grateful.”
According to the proposed rule, a shelter that denies access to a transgender client must recommend the client to another shelter. A shelter may still choose to serve transgender people, but if it does, the shelter must do so consistently.
The USCCB’s office of general counsel wrote to HUD Sept. 11 expressing gratitude “for the flexibility that the proposed rule provides on placement determinations in facilities that provide emergency shelter and other housing. This is important in fulfilling the basic need for, and human right to, shelter.”
“We support the proposal, as it would offer needed flexibility to temporary and emergency shelters in making placement determinations based on sex. This flexibility will help service providers respond to the unique circumstances and needs of those in their care so they can continue to work towards the goal of ensuring everyone has access to safe, decent, and affordable shelter.”
The bishops’ counsel stated that HUD’s 2016 rule “impeded the ability of organizations participating in HUD programs to make housing placements appropriate to persons on the basis of their sex. By removing these impediments and by restoring the flexibility of organizations that provide housing to make admissions and accommodations decisions, the proposed rule furthers the laudable objective of enabling everyone to receive needed housing.”
However, the general counsel suggested that the proposed regulation not condition eligibility for federal funds on compliance with state or local law, which could well work at cross- purposes with HUD’s intention.
“Though it may make sense for the federal government under principles of federalism to not require states to allow shelters to accommodate based on biological sex, it makes less sense for this proposed rule to condition federal assistance on following state and local laws that can contradict its very own goals of flexibility. The federal government should lead by persuasive example here, on the flexibility to define sex biologically, and not require adherence to state and local law with respect to shelters’ policies for determining sex and related decision-making.”
The Hope Center in Anchorage was given as an example by the HUD for the need for its newly proposed rule; the faith-based women’s shelter had faced a complaint refused to allow a biological man who identified as a woman to stay the night.
“Yet … HUD says the policy under the proposed rule will respect religion but that shelters’ policies must abide by state and local law. This means that, despite using the Hope Center as an example to justify the proposed rule, the proposed rule would actually reinforce the local ordinance against the Hope Center,” the counsel pointed out.
“We do not think the federal government should be the indirect enforcer of state law, particularly when that law burdens religious liberty and its application and constitutionality are disputed, as in the Hope Center case.”
The bishops’ general counsel also asked for further clarification in multiple parts of the proposed regulation, suggesting that greater flexibility may be the best course.
“On balance, if these questions do not have clear answers or are insoluble under the proposed rule, then the prudent course may be to simply delete the requirement that admission decisions be uniform and consistent in order to avoid hamstringing shelters and preventing them from making what they regard as appropriate exceptions,” the counsel’s office wrote.
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