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Bishops say proposed HUD rule gives faith-based shelters some flexibility


  • Gina and Jaz, two homeless women from Texas, cross railroad tracks to return to their makeshift shelter in Cleveland Feb. 28, 2018, after receiving a hot meal and clothing from the Knight Riders outreach ministry of St. Paschal Baylon Parish in suburban Highland Heights. (CNS photo/Bob Roller)
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WASHINGTON (CNS) -- Three U.S. Catholic bishops said that a proposed modification to a 2016 federal rule governing who temporary and emergency shelters must take in "is a step in the right direction" because it allows faith-based facilities more flexibility.

The proposal issued by the Department of Housing and Urban Development to modify rules "with respect to sex-specific accommodations poses considerations affecting the well-being of, and service to, the poor," the bishops said in a Sept. 11 statement.

"Though not perfect nor answering all questions, it is a step in the right direction toward improving flexibility while respecting all persons' right to basic shelter, for which we are grateful," they said.

Signing the statement were: Archbishop Paul S. Coakley of Oklahoma City, chairman of the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development; Archbishop Thomas G. Wenski of Miami, chairman of the USCCB Committee for Religious Liberty; and Bishop David A. Konderla of Tulsa, Oklahoma, chairman of the Subcommittee for the Promotion and Defense of Marriage.

Their Sept. 11 statement also was part of public comment filed the same day with the Office of General Counsel of HUD's Regulations Division by Anthony R. Picarello Jr., USCCB associate general secretary and general counsel, and Michael F. Moses, USCCB associate general counsel.

The Obama administration in 2016 added a section to the Equal Access Rule requiring "all HUD-funded housing services to be provided without discrimination based on sexual orientation or gender identity," meaning shelters could not turn away "individuals whose gender identity does not match the sex they were assigned at birth."

Under HUD's proposal to modify this section, shelter providers "that lawfully operate as single-sex or sex-segregated facilities" can voluntarily establish an admissions policy for situations "when an individual's gender identity does not match their biological sex."

HUD Secretary Ben Carson said the policies these shelters determine "could be based on biological sex, sex as identified on official government identification, or the current rule's mandate of self-identified gender identity."

The proposed modification "returns the decision-making to local shelters" and will "better accommodate religious beliefs of shelter providers," he said in a statement. The proposal, he said, upholds HUD's commitment to fair treatment of all individuals "while allowing shelter providers to establish an admissions policy that best serves their unique communities."

"Each shelter's policy is required to be consistent with state and local law, must not discriminate based on sexual orientation or transgender status, and may incorporate practical considerations of shelter providers that often operate in difficult conditions," a HUD news release said.

The housing agency said shelters "serving a specific sex must provide people who they do not accommodate with information about other shelters in the area that can meet their needs."

"If a shelter elects in its policy to accommodate persons whose gender identity is different from their sex," it continued, "persons who have concerns with being housed with persons of a different biological sex ... must be provided a referral to a facility whose policy is based on biological sex."

HUD released its proposal July 1 and opened up a 90-day period for public comment.

In its comments filed with HUD, the USCCB pointed out three problems with the 2016 change instituted by the Obama administration:

-- HUD's decision to make "'gender identity' a protected classification for relevant federal housing programs had no support in any act of Congress."

-- The regulation "posed problems for the privacy and safety of residents, particularly women in single-sex facilities."

-- It "created a burden on the religious liberty of faith-based providers, a burden that, particularly in the absence of an act of Congress supporting it, was not justified by any compelling government interest."

"People who identify as transgender experience homelessness, specifically unsheltered homelessness, at disproportionately high rates. These individuals are especially vulnerable and must not be denied shelter," the conference said in its comments.

"The USCCB has consistently advocated for the right to shelter for all, with a particular concern for those who are most vulnerable. We will continue this advocacy just as Catholic service providers will continue endeavoring to meet the needs of all who come to their doors."

The bishops' conference also said that the Catholic bishops have long maintained "no person should be denied or excluded from housing for any reason. Catholic teaching compels us to work so that all may have access to safe, decent, and affordable housing."

However, the 2016 rule "impeded the ability of organizations participating in HUD programs to make housing placements appropriate to persons on the basis of their sex," the USCCB said.

"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," it added.

In the seven-page document filed with HUD, the USCCB raised several questions about the HUD proposal such as: "May a shelter make admissions and placement decisions based on individual needs and circumstances, in accord with the contours of their policy? Must the shelters choose how they want to define and assess the term 'sex' and then be bound by that choice in all circumstances without protocols for exception?"

It also asked for clarification as to whether the proposed rule "only affects shelters that accommodate one sex, or if it also affects shelters that accommodate both sexes but in separate sleeping and bathing quarters."

The USCCB also recommended HUD "encourage states and localities to provide managerial flexibilities for 'health and safety' reasons."

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Editor's Note: The full text of the USCCB's comments on the HUD proposal can be found online at https://bit.ly/2FztG5W.

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