Gender Identity Watch submitted comment to the U.S. Department of Housing and Urban Development’s proposed rule on Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs. You may read our comment in its entirety here. An excerpt follows:
The Proposed Rules extend “equal access” to housing opportunities funded under the Programs based on so-called “gender identity.” The Proposed Rules amend the definition of “gender identity” from “ actual or perceived gender-related characteristics” to “the gender with which a person identifies, regardless of the sex assigned to that person at birth.” The Proposed Rules further would add a definition of “perceived gender identity” to the existing regulation, defining it as “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.”
And what is the “discrimination” people can avoid on the bases of “gender identity” or “perceived gender identity” if HUD adopts the Proposed Rules? The “discrimination” of having separate sleeping and bathing quarters based on biological sex. Specifically, the Proposed Rules provide that “(p)lacement and accommodation of individuals in shelters … with configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities shall be made in accordance with the individual’s gender identity.” The Proposed Rules include “narrow circumstances” where a written case-by-case determination can be made (presumably to provide accommodations that would not require Women and Girls to share private space with Males), but such determination cannot be based on the individual’s actual or perceived gender identity.
As an initial matter, we note that current HUD rules do not define “gender,” which makes it difficult for attorneys and others to determine what “gender” means in the Proposed Rules. Based on the context of the definition, it appears that “gender” in the Proposed Rules actually means biological sex – that is, the fact that most humans on the planet are identifiable as Male or Female. Setting that very basic drafting error in the Proposed Rules aside, the definitions are both wholly dependent on cultural stereotypes as to how Males and Females should behave. More importantly, the definition “gender identity,” which embraces the notion that there are traits, manners of expression, or modes of appearance that are inconsistent or consistent with one’s biological sex, seems to violate United Nations conventions seeking to eradicate sex stereotyping.
Further, the definition of “perceived gender identity” does not, in any manner, allow for an objective determination as to its meaning. Perception, by its very nature, is subjective; …. More importantly, the definition does not indicate who is doing the “perceiving” – is it the person asserting a “gender identity,” or is it the person viewing the person who believes they have “identified with” the sex opposite their biological sex (by relying on sex stereotypes to convince others of this fiction). This is a matter of significance, because if the Proposed Rules allow the person asserting “gender identity” to be the sole arbiter of their “gender identity,” tragic results will flow from this determination.
We already know that Men have used “gender identity” as a ruse to obtain access to female-only space. We also know that Men who have obtained such access only to commit acts of sexual assault against Women. For example, in 2012, the Ontario (Canada) Legislature adopted “Toby’s Law” to amend the Human Rights Code to ban discrimination based on gender identity and gender expression. The Ontario Human Rights Commission, which administers the Human Rights Code , defines “gender identity” as “those characteristics that are linked to an individual’s intrinsic sense of self that is based on attributes reflected in the person’s psychological, behavioural and/or cognitive state. Gender identity may also refer to one’s intrinsic sense of manhood or womanhood. It is fundamentally different from, and not determinative of, sexual orientation.” This vague, subjective definition is not dissimilar from the definition in the Proposed Rules. Importantly, there is no requirement in this definition (or the Proposed Rules’ definitions) that “gender identity” requires a medical diagnosis, or even medical intervention.
Subsequent to the enactment of Toby’s Law, a Man calling himself “Jessica,” Christopher Hambrook, demanded and received access to two women’s shelters in Toronto. This was his right under Toby’s Law, and the shelters would have been subjected to a discrimination complaint had they denied him access, or even if they had asked him for medical proof of his gender identity.
In February 2012, a woman living at one of the shelters went to bed wearing tights, a bathing suit and a lightweight shirt in an attempt to cover herself and to protect herself from assault, as she was aware of “Jessica’s” presence in the shelter. The fact that Women regularly dress strategically to avoid sexual assault should indicate to HUD just how dire the situation is for Women and Girls in homelessness. She awoke to find Hambrook assaulting her.
It is unconscionable that HUD would seek to promulgate rules as it has proposed without ANY regard to keeping Women and Girls safe from predation by Males. As you very well know, as these are HUD statistics, 84% of families experiencing homelessness are Female-headed, and more than 92% of those homeless mothers have experienced severe physical and/or sexual abuse during their lifetime. It is wholly foreseeable that enacting a rule with absolutely no objectivity or safeguards will result in predators taking advantage of it to prey on some of the most vulnerable members of our society. This is wrong, and I encourage HUD to scrap these Proposed Rules in their entirety. HUD might also consider what, exactly, it seeks to do with these Proposed Rules and why HUD has so coolly determined that the rights of Women and Girls are not worth preserving, let alone considering.
 A full discussion on this deeply philosophical topic is beyond the scope of this comment letter, but we encourage you to consider that philosophical questions such as this are perhaps best left to philosophers and not government lawyers trying to appease a key Democratic constituency.
 A simple internet search reveals that Men have used the ruse of “pretending to be a Woman” to gain access to bathrooms and other spaces designated as female-only. Here is a search for “man dressed as a woman” and “bathroom.” Based on your definitions in the Proposed Rules, the Males able to assert “protection” from “discrimination” are no different than a “man dressed as a woman.”
 See., e.g. K. Rewson, “Female real estate agent attacked by man dressed as a woman,” 11Alive Atlanta (July 22, 2015).