A. Equal Access to Housing Regardless of Sexual Orientation or Gender Identity
On February 3, 2012, HUD published a final rule in the Federal Register entitled, "Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity". This rule became effective March 5, 2012 and was amended in September 2016 with 24 CFR 5.106. The rule provides a regulatory provision that prohibits considering a person's marital status, sexual orientation, or gender identity in making homeless housing assistance available. Refer to: https://www.hudexchange.info/resources/documents/Equal-Access-Final-Rule-2016.pdf for more information.
Gender identity is defined as the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person's perceived gender identity. Perceived gender identity means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender related characteristics, or sex assigned to the individual at birth or identified in documents.
Subrecipients are required to establish equal access on gender identity policies (in line with federal rules and the requirements in this document) for:
- Program admissions
- Operating policies and procedures (including privacy and security policies)
Specifically, ESG funded activities are required to:
- Make housing available without regard to actual or perceived sexual orientation, gender identity, or marital status.
- Grant equal access to facilities, buildings, benefits, accommodations, and services to individuals in accordance with the individual's gender identity, and in a manner that affords equal access to the individual's family.
- Prohibit any requirements for individuals to prove gender identity (including documentation, identification, intrusive questioning on person's anatomy or medical history, etc.
- Prohibit consideration of a participant or potential participant's entry into a program because his or her appearance or behavior does not conform to gender stereotypes.
- Prohibit any segregation of transgender participants (e.g. transgender only shelter or space), unless the transgender participant requests an accommodation (like a more private space) and the facility can accommodate the request.
- Base discharges, service restrictions, and warnings following any incidents involving transgender participants ONLY on the individual's behavior, not gender identity.
- Have a zero tolerance for harassment of transgender residents:
- Staff shall recognize that harassment based on gender identity is discriminatory behavior and will be treated as such.
- All unacceptable behavior including, but not limited to harassment, abuse, assault, discrimination, intimidation, threats, violence and many other forms against transgender residents will be dealt with based on the program's behavior policies.
- Due to the high incidence of harassment of transgender people, concerns about the safety of a transgender resident will be taken with utmost seriousness.
- Permit any participants expressing concern to use bathrooms and dressing areas at a separate time from others in the facility.
- Work (to the extent feasible) with the layout of any shelter facilities to provide for privacy in bathrooms and dressing areas.
- Ensure that policies do not isolate or segregate participants based upon gender identity.
- Take reasonable steps to address any safety or privacy concerns expressed by participants. This may include:
- responding to the requests of the participant expressing concern through the addition or a privacy partition or curtain
- provision to use a nearby private restroom or office, or
- separate changing schedule.
- Provide staff (including full-time, part-time and volunteer) and contractors with ongoing training on the rules in this document and the needs, concerns, and realities of transgender people seeking services.
- Best practices suggest that when the subrecipient is uncertain of the participant's sex or gender identity, the subrecipient simply informs the participant or potential participant that the subrecipient provides shelter based on the gender with which the individual identifies.
- There are some resources available to subrecipients on implementing the Equal Access Rule, including:
- Equal Access for Transgender People: Supporting Inclusive Housing and Shelters
- Equal Access Self-Assessment for Shelters and Projects
- Equal Access Expectation: Training Scenarios for Use with Project Staff
Note: ESG funds may be used to renovate an emergency shelter to maximize privacy and safety; prior authorization required from DHS.
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B. Involuntary Family Separation
If a HUD-assisted shelter serves any families with children, it must serve all types of families with children. The definition of family under the Equal Access Rule at 24 CFR 5.403 applies to ESG, which does not limit a "family" to women with children. Additional guidance on the definition of 'family' and how it applies to subrecipients of ESG and CoC Program funds may be reviewed in the CoC FAQ 1529: https://www.hudexchange.info/faqs/1529/how-is-the-definition-of-family-that-was-included/.
In addition, the "involuntary family separation" requirement found in Section 576.102(b) of the ESG Program interim rule applies to all shelters that receive ESG Program funding. This section of the interim rule requires that "the age of a child under 18 must not be used as a basis for denying any family's admission to an emergency shelter that uses ESG funding or services and provides shelter to families with children under the age of 18." The intent of the involuntary family separation provision in the ESG interim rule is to allow families with children to remain in shelter together if they choose.
Together, these policies prohibit HUD-assisted emergency shelters that serve any children from denying assistance to or separating members of a family with children, based on gender or age. Just as a shelter cannot separate teenage boys from their families, it cannot separate out or deny assistance to adult men that present as a part of the family (e.g. fathers, uncles, the mother's boyfriend, etc.) since that has the end result of separating children from members of the family. Although we recognize that this may bring challenges, this is the law.
Accommodating Families: If a HUD-assisted shelter has private rooms in which a family can stay together, then the family must be able to stay in a room together if they choose.
In all cases (whether or not it's a congregate-style shelter), all families must be treated the same. For example:
- If the standard practice is to put down mats in a conference room for everyone who is considered "overflow" (beyond the capacity of the shelter beds), then it can shelter a family together in that space.
- If the standard practice is to place a family in its own room, it would be acceptable to leave a bed empty to accommodate the family, (e.g. a family of four could stay in a unit with 5 beds, and the fifth bed could be open). In this example, HUD would not expect a subrecipient to fill the 5th bed with an individual that is not a member of the family, so long as the subrecipient documented the reasons for having open beds.
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C. Single Sex Shelters
HUD-assisted single-sex shelter is acceptable only under limited conditions in which the facilities meet both of the following requirements:
- The shelter must be for individuals only. A shelter that accepts families with children cannot be single sex. An example of this might be a shelter that serves single women only (women not in families, without children under 18), and
- The shelter must not be considered a "dwelling unit" and it must consist of a single structure with shared bedrooms or bathing facilities. This policy, which applies to ESG, is stated most clearly in the CoC interim rule, at section 578.93: "The housing may be limited to one sex where such housing consists of a single structure with shared bedrooms or bathing facilities such that the considerations of personal privacy and the physical limitations of the configuration of the housing make it appropriate for the housing to be limited to one sex."
If the facility is not permitted under the HUD standards to operate as single-sex, then the project must serve people of any gender who are eligible. That means that a facility serving any families with children must serve all families with children and may not discriminate against specific families because of the gender of the head of household or child(ren).
D. Shelter Habitability and Lead Requirements
Whenever ESG funds (or matching funds for ESG) are used under the Emergency Shelter component for shelter operations or shelter renovations, the building must meet the minimum standards for safety, sanitation, and privacy provided in 576.403(b). If cash or non-cash contributions (e.g. funds or staff time) used for renovation or shelter operations are to be contributed to the subrecipient's ESG program as match, the emergency shelter must meet the minimum standards, because all matching contributions must meet all requirements that apply to the ESG funds provided by HUD.
Documentation of compliance with the minimum standards for emergency shelter activities must be maintained. Note: The same standards apply regardless of the amount of ESG funds involved. Minimum standards do not apply to Essential Services and HMIS activities.
Shelter Operation Inspection Requirements
Any emergency shelter that receives ESG funds for shelter operations (including minor repairs) must meet the minimum safety, sanitation, and privacy standards as indicated in 24CFR §576.403(b).
- The subrecipient must ensure that the shelter meets any DHS standards that add to or exceed HUD's minimum standards.
- The shelter must be inspected on-site to ensure that it meets the minimum standards before ESG funds are provided for shelter operations.
- The shelter must meet all standards for the entire period during which ESG funds are provided for operating the emergency shelter.
- If the shelter fails to meet the minimum standards, ESG funds may be used to bring it up to the minimum standards, if available.
- If the shelter continues to receive ESG shelter operating funds over a period of time, then onsite inspections must be conducted each time the shelter receives an award (annually).
- If the shelter is moved to a new site or structure, that new site or structure must meet all emergency shelter standards for the remaining period that ESG funds are used for operating expenses.
Lead-based paint remediation and disclosure for Shelters
The Lead-Based Paint Poisoning Prevention Act, the residential Lead-Based Paint Hazard Reduction Act of 1995, and implementing regulations in 24 CFR part 35, subparts A, B, H, J, K, M and R apply to all shelters assisted under the ESG program and to all housing occupied by program participants. Program Participants must be provided a copy of the Lead-Based paint notification pamphlet if the household has a child under the age of 6, or a pregnant woman is/will be residing in the unit; and it was construction prior to 1978. Following are the regulations in 24 CFR part 35.pdf:
- Subpart A - Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards Upon Sale or Lease of Residential Property (§§ 35.80 - 35.98)
- Subpart B - General Lead-Based Paint Requirements and Definitions for All Programs. (§§ 35.100 - 35.175)
- Subpart H - Project-Based Assistance (§§ 35.700 - 35.730)
- Subpart J - Rehabilitation (§§ 35.900 - 35.940)
- Subpart K - Acquisition, Leasing, Support Services, or Operation (§§ 35.1000 - 35.1020)
- Subpart M - Tenant-Based Rental Assistance (§§ 35.1200 - 35.1225)
- Subpart R - Methods and Standards for Lead-Paint Hazard Evaluation and Hazard Reduction Activities (§§ 35.1300 - 35.1355)
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E. Termination of Assistance
Each subrecipient is required to establish a formal process for the termination of assistance to a participant. This process must recognize the individual's right to a hearing. Subrecipients are required to submit their termination policies in their annual funding application. As a reminder, records must be kept in accordance with the policies set forth in Section 8 for all participants, including those have been denied assistance or whose assistance has been terminated.
F. Participant Confidentiality and Privacy Policies
Each subrecipient must incorporate into their policies and procedures a process that will ensure the confidentiality of program participant's identifying information; records pertaining to any individual or family provided family violence prevention; and treatment services offered under any project assisted with ESG funds. Furthermore, the address or location of any shelter for victims of domestic violence assisted under ESG will be anonymous except upon written authorization from the person or persons responsible for the operation of the shelter for this information to be made public.
G. Homeless Management Information System Requirements
DHS must ensure that the information on all persons served and all activities assisted under the ESG program is entered into the local Continuum of Care's community wide HMIS or comparable database if a domestic violence subrecipient available in the area in which those persons and activities are located. Participation will be in accordance with HUD's standards on participation, data collection, and reporting. Additional information on the specific data to be collected can be found in Section 6-D.
If the subrecipient is a victim services subrecipient, it is required to use a comparable database to ensure participant level data is collected over time and generates unduplicated aggregate reports based on the data.
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