Dear City Attorney Mullen:
It is our understanding that the City of Oceanside recently awarded a contract to San Diego Rescue Mission to operate the City’s first government-funded emergency shelter for unhoused people.
For decades, the ACLU Foundation of San Diego and Imperial Counties (ACLU SDIC) and the ACLU Foundation of Southern California (ACLU SoCal) have been dedicated to combatting discrimination and safeguarding equal access to government services, including for LGBTQ people. We write today to urge the City of Oceanside to establish inclusive policies and practices governing the operation of its new government-funded homeless shelter. In particular, consistent with state law of which your office is no doubt aware, we ask that the City of Oceanside take affirmative steps to ensure that LGBTQ people experiencing homelessness do not face discrimination or harassment at the shelter, and that they are welcomed and fully included in all shelter services and programs.
ACLU SDIC and ACLU SoCal believe that everyone should have access to a safe, affordable, permanent home, regardless of income or identity. But given California’s dire shortage of affordable housing, LGBTQ people who become unhoused often must rely on emergency shelters as their primary form of housing and for their survival. LGBTQ people deserve to be welcomed, respected, safely housed, and free from violence.
Homelessness among LBTQ People
Because of a cycle of discrimination and poverty, LGBTQ people – and in particular, transgender people – are more likely to experience homelessness. According to the Williams Institute, 17% of LGBQ adults have experienced homelessness, compared to 6% homelessness in the general population. The 2015 U.S. Transgender Survey conducted by the National Center for Transgender Equality found that 30% of respondents had experienced homelessness at some point in their lifetimes and that 12% had experienced homelessness within the one year prior to the survey. No state reflects this reality more than California: approximately 50% of all transgender people experiencing homelessness in the United States are in California.
LGBTQ youth are at particularly disproportionate risk of homelessness. According to the Williams Institute, 40% of homeless youth identify as LGBTQ. In San Diego County, at least 25% of homeless youth identify as LGBTQ.
Because of economic trends and inadequate shelter resources, these numbers have increased drastically in the last few years. For example, the population of gender non-conforming individuals experiencing homelessness increased by 80% from 2017 to 2019.
A comprehensive survey of 7,000 transgender adults conducted by the National Alliance to End Homelessness offered insight into a few of the causes of high rates of transgender homelessness: 19% of transgender adults reported having been refused a house or apartment, and 11% of transgender adults reported having been evicted because of their gender identity and/or expression.
Further, LGBTQ people experiencing homelessness have worse outcomes than non-LGBTQ people experiencing homelessness. LGBTQ homeless youth experience 2x the rate of early death and a much higher likelihood of being physically harmed while experiencing homelessness.
Transgender people who are homeless face extremely high levels of harassment and violence on the street and in shelters. In 2019, the Fresno State Women’s Studies Department and Trans-E-Motion interviewed transgender women experiencing homelessness in Fresno and reported that the women felt unsafe and were being mistreated by staff at homeless shelters. Similarly, in a separate study, 24% of transgender Californians who experienced homelessness in 2014 avoided staying in a shelter because they feared being mistreated as a transgender person.
Access to a welcoming and inclusive shelter that does not discriminate can help alleviate some of these harms.
California Laws Expressly Prohibits Discrimination Against LGBTQ People in Shelters
As your office is no doubt aware, California law prohibits discrimination in shelters on the basis of sexual orientation and gender identity.
The Fair Employment and Housing Act (FEHA) prohibits denying or “otherwise mak[ing] unavailable” a dwelling to people on the basis of protected categories, including “gender identity,” “gender expression,” and “sexual orientation.” FEHA bars both intentional discrimination and actions with a discriminatory effect. California regulations specifically define housing accommodation or dwelling to include “homeless shelters,” “emergency shelters,” and “shelters for individuals surviving domestic violence.” Indeed, guidance from the Department of Fair Employment and Housing (DFEH) states that shelters cannot discriminate against LGBTQ people, must grant access to programs and facilities consistent with residents’ gender identities, and cannot ask residents about their anatomy or for medical evidence of their gender identity.
The Unruh Civil Rights Act (Unruh Act) similarly prohibits discrimination on the basis of protected categories – including sex, gender, sexual orientation, gender identity, and gender expression - in businesses open to the general public. The Unruh Act provides that all people, regardless of sex or sexual orientation, “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Nonprofit service providers open to the public and emergency, overnight, and transitional shelters are both places of public accommodation subject to the Unruh Act.
Finally, shelters receiving government funding are prohibited from discriminating against LGBTQ people pursuant to Government Code § 11135(a), which provides:
No person in the State of California shall, on the basis of sex . . . or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is . . . funded directly by the state, or receives any financial assistance from the state.
California’s statutory scheme is unequivocal and consistent across various contexts that individuals have the right to access housing and public accommodations without harassment and discrimination based on their sexual orientation or gender identity.
Regarding operation of a homeless shelter, application of these protections requires that:
• The shelter cannot deny entry or provision of any services on the basis of a client’s LGBTQ identity.
• If the shelter or portions of the shelter are sex-segregated, placement must be granted to all people of that gender, including transgender people. For example, a women’s shelter must permit both transgender women and cisgender (non-transgender) women.
• The shelter must permit clients to use the restroom, shower, and locker room that match their gender identity.
• If the shelter has a dress code, the shelter must permit every client to follow the dress code in a manner consistent with their gender identity.
• The shelter cannot demand legal or medical “proof” of a client’s gender.
• Staff must address all clients by the name and pronouns that align with their gender identity.
We urge the City of Oceanside to consider the needs of its LGBTQ population in devising the policies and practices governing operation of its first government-funded homeless shelter. To do so, we recommend:
• Adopting policies and procedures that support LGBTQ clients, including but not limited to those listed above, such as permitting access to sex-segregated spaces based on a client’s stated gender identity and prohibiting the misgendering of clients;
• Training shelter staff on LGBTQ competency;
• Appointing an LGBTQ liaison to oversee adoption and implementation of LGBTQ-related policies and to support LGBTQ clients;
• Ensuring that intake forms and any other written materials include all gender identities and sexual orientations; and
• Establishing a process by which shelter residents can file complaints with the City regarding civil rights violations and have their complaints heard and adjudicated by an independent body.
Thank you for your attention to these issues.