More than two years after the Trump administration withdrew federal guidance on rules barring anti-LGBT discrimination in homeless shelters, Secretary of Housing & Urban Development Ben Carson said April 2 his department won’t reissue the documents because LGBT rights supporters “would probably dislike” what it says.
Carson made the remarks April 2 before the House Appropriations Subcommittee on Housing under questioning from Rep. Mike Quigley (D-Ill.).
Citing the statistic that 40 percent of homeless youth nationwide identify as LGBT, Quigley asked how homeless shelters receiving federal funds could comply with rules against anti-LGBT without guidance informing them about it.
“Well, in fact, the guidance was pretty much obliterated by the ’12-’16 rule, and we’ve gone back and studied it very carefully and concluded that putting that sub-regulatory guidance there actually confused the issue and made a lot more regulations necessary,” Carson said. “And we’re trying to simplify things. We have not removed the rules. We have not changed the rules at all.”
The reference to a “12-16 rule” was about an Obama administration rule in 2012 prohibiting anti-LGBT discrimination in federally funded housing programs, which was clarified in 2016 under former HUD Secretary Julian Castro to make clear homeless shelters receiving federal dollars must accept transgender people consistent with their gender identity.
At the start the Trump administration in 2017, HUD reversed plans on issuing guidance to homeless shelters informing them of those rules. Carson has previously said the guidance was under review, but nothing has been put in place informing them of the regulation.
During the hearing, Quigley didn’t buy Carson’s assertion the underlying “obliterated” the guidance.
“The grantees need this guidance to avoid the discrimination and to make clear to them what the rules are,” Quigley said. “And there are no inconsistencies there.”
The Illinois Democrat followed-up by asking why HUD missed by almost six months a deadline he said exist in congressional appropriations calling for completion of review of the guidance.
Carson asserted the agreement under the report was the guidance would be reviewed, not “be put back up.”
“And they were reviewed, and it was concluded that the ’16- the 2016 rules obliterated the guidance that was there and confused the issue,” Carson said. “The rules stand as they are. We have not made any attempt to change them.”
Quigley’s response: “That has incredibly confused this issue even further.”
If the underlying regulations obliterated the new guidance, Quigley asked, why won’t the Trump administration simply issue new guidance that works so “the youth of this country know that they have rights and that they can’t be discriminated against?”
That’s when Carson tilted his hand on the real reason the guidance was issued: Supporters of LGBT rights wouldn’t like what the Trump administration had to say.
“From my conversations with many legal experts throughout government, my suspicion is that you would probably dislike the sub-regulatory guidance that would be put up,” Carson said. “And that this provides you with considerably more freedom.”
The underlying rule was based on language under federal law barring discrimination on the basis of “sex.” The Obama administration interpreted that language to apply cases of sexual-orientation and anti-transgender discrimination.
But the legal view of the Trump administration that laws banning discrimination on the basis of “sex” should be more narrowly construed and don’t apply to cases of anti-LGBT discrimination. As such, any guidance from Carson at HUD would likely reflect that view — and inspire objections from LGBT rights supporters who would say the guidance doesn’t fully cover transgender people.
Flustered, Quigley asked Carson to confirm to issuing no guidance would actually provide greater protections for LGBT homeless people.
“I’m suggesting that you might not like the sub-regulatory guidance that was put up,” Carson replied.
Quigley insisted on knowing why, adding, “I’m a glutton for punishment, sir.”
“Because you probably wouldn’t agree with it,” Carson said.
Quigley retorted: “Because it goes along with allowing people to discriminate against LGBTQ youth?”
“The rules that are there allow people to have a non-discriminatory atmosphere and that’s what we are trying to achieve,” Carson said.
That didn’t jive with Quigley, who again asked if HUD wants a non-discrinminatory atmosphere, why not create guidance establishing that.
“The rules already say that,” Carson replied.
Quigley, recognizing the two were “go[ing] around and around,” made a final attempt to ask about the guidance.
“If you have a rule that tells you what to do, you don’t need more guidance on that,” Quigley said.
Quigley was clearly unhappy with the exchange after it concluded.
“We are all now more stupid than we were when we came in the room today,” Quigley said.