Defending Ed Submits Public Comment on the Proposed Agency Rule: Equal Access to Housing in HUD Programs Revisions

The U.S. Department of Housing and Urban Development (HUD) published a Notice of Proposed Rulemaking on December 19, 2025. The proposed rule would ensure equal access to qualifying facilities based on an individual’s sex–an individual’s immutable biological classification as either male or female–rather than the ever-shifting concept of self-assessed gender identity. The rule would reverse HUD’s 2016 regulation—which based placement in single-sex HUD-funded facilities solely on self-identified gender identity—and instead ground eligibility in biological sex while letting facility operators request reasonable evidence to verify an applicant’s sex.

On June 26, 2026, Defending Education filed a comment supporting the proposed rule, arguing that the regulatory change rests on two core interests, safety and privacy: in shelters, transitional housing, and supportive housing with shared sleeping and bathing spaces, biological sex is a material characteristic, and residents, such as domestic-violence and trauma survivors, face genuine risk or re-traumatization when housed alongside biological males. DE’s comment also defends the rule’s legality, contending that HUD can revise these definitions under the same general rulemaking authority used in 2016 and that the rule satisfies the Administrative Procedure Act’s reasoned-decision-making standards, while drawing on Title IX’s express allowance for sex-separated facilities and supporting case law to argue that sex-based separation in intimate spaces is lawful and historically grounded. DE’s comment also emphasizes that the rule would not deny housing assistance to transgender individuals but would restore operators’ placement discretion, and offers implementation recommendations.