The Department of Housing and Urban Development (HUD) announced a proposed rule on April 28 that would revise its equal access regulations to better align with the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” including the removal of references to “gender” and “gender identity” from HUD regulations.

According to the notice on the Federal Register, HUD has reconsidered the 2012 and 2016 equal access rules, which defined “gender identity” as “actual or perceived gender-related characteristics” and included a provision that policies must ensure that individuals were not subject “to intrusive questioning or asked to provide anatomical information or documentary, physical or medical evidence” of their “gender identity.”

HUD proposed that all references to “gender identity” and “gender” be removed throughout its regulations and replaced with “sex” to refer to an individual's immutable biological classification as either male or female as defined by the executive order.

The changes would apply across HUD’s programs, including mortgage programs, Section 8 housing and other housing programs, fair housing enforcement and administration, programs to help the homeless and domestic violence victims and community development programs.

The proposed rule would also remove prohibitions on service providers from seeking information to confirm the sex of an individual seeking services. The rule would allow a facility provider to require reasonable assurances or evidence to establish a person’s sex.”

Further, the proposed rule would add a provision stating that these requirements preempt any conflicting state or local laws non-compliance and that violations of said requirements would be subject to all applicable penalties, including loss of federal funding.

As justification for the proposed rule, HUD said agency leaders believe the 2016 Rule “impermissibly restricted single-sex facilities without proper congressional authorization while also violating both the privacy and safety of homeless women and the religious liberty of many faith-based service providers,” the notice stated.

As further justification, HUD pointed to the executive order which instructed agencies to amend agency documents, including regulations, to use the term “sex” instead of “gender.” HUD believes it is beneficial to clarify this across all its operations to clarify that many of its existing regulations which protect “gender” (as opposed to “gender identity”) prohibit discrimination based on sex, not gender identity.

HUD acknowledged in the notice that this rulemaking would result in “individuals who claim a different gender identity than their sex being denied access to their preferred single-sex shelters or their preferred accommodations in other shelters.”

Additionally, this rulemaking would require some organizations to follow rules inconsistent with their beliefs regarding gender and sex, if they continue to use federal funds. HUD has considered these potential impacts and believes they are outweighed by the factors discussed above, especially that HUD must follow the clear meaning of the statute, ensure safe shelter environments for women and respect the free exercise of religion.

Comments on the proposed rule are due by June 29.