Proposed rule brings LGBT equality to Indian housing programs

Tuesday, May 24, 2016

Tribal housing agencies can't discriminate against anyone based on sexual orientation, gender identity or marital status under a proposal released by the Obama administration this month.

In 2012, the Department of Housing and Urban Development finalized a rule that broadened protections for lesbian, gay, bisexual and transgendered (LGBT) individuals. But Indian Country was not included because the administration first wanted to ask tribes about the issue.

The situation is changing with a new regulation that was published in the Federal Register on May 9. If it becomes final, tribal housing agencies that want to continue receiving federal funds cannot consider anyone's "actual or perceived" sexual orientation, gender identity or marital status. They also could not ask anyone about his or her sexual orientation or gender identity.

"As the nation's housing agency, HUD administers programs designed to meet the goal of ensuring decent housing and a suitable living environment for," Randy Akers, the acting deputy assistant secretary for Native American programs, wrote in a Dear Tribal Leader letter. "In pursuit of this goal, it is HUD's responsibility to ensure that all persons who are eligible to participate in HUD's programs have equal access to the programs and have the opportunity to receive HUD's assistance without being subject to arbitrary exclusion."

The Navajo Housing Authority and the Shiprock Office of Youth Development (ODY) Boys and Girls Club opened the $6.6 million youth complex in Shiprock, New Mexico, in March 2015. Photo: Navajo Housing Authority

The rule was developed after HUD asked tribes for their views through "informal consultation" in January 2015. According to the agency, only two comments were received during the 30-day solicitation period. One tribal housing entity opposing the proposal entirely.

The second comment came from a "housing development and management organization" that urged HUD to set up a negotiated rulemaking committee before moving forward. Such a process typically involves close coordination with tribal officials and can be timely and complex.

But that suggestion was rejected because the agency concluded that the proposal does not affect the Native American Housing Assistance and Self Determination Act.

"This rule pertains to nondiscrimination requirements and does not pertain to regulations that implement NAHASDA statutory requirements," the Federal Register notice states.

A group called the Coalition for Navajo Equality is seeking to repeal the Dine Marriage Act of 2005, which outlaws the recognition of same-sex unions on the Navajo Nation. Photo: Coalition for Navajo Equality / Facebook

The same organization also said tribes should be able to consider marital status in recognition of their authority over the domestic relations of their citizens. Dozens of tribes have embraced the marriage equality movement but the two largest -- the Cherokee Nation and the Navajo Nation -- explicitly bar same-sex unions.

The two tribes are also big HUD recipients due to the large populations they serve but the proposed rule makes clear that they, along with others, would not be able to consider marital status in making eligibility determinations. The regulation also bars "recipients or sub-recipients of HUD funds" from asking about a person's sexual orientation or gender identity.

Still, if the rule becomes final, it would not require tribes to change their marriage policies. Indian Country remains an outlier in that respect because the federal government has been recognizing all marriages since the U.S. Supreme Court struck down a provision in the Defense of Marriage Act in June 2013.

In June 2015, the high court ruled that same-sex marriages must be recognized in all states. The decision did not apply to tribal governments.

Tribes will be able to share their views on the proposed rule until July 8. So far, no public meetings or consultation sessions have been announced by HUD's Office of Native American Programs.

Since the rule was published on May 9, only one comment has been received via regulations.gov.

"The LGBT should be a non-issue for traditional tribal people and communities, it's only when we become civilized that we begin to be judgmental and exclusionary," the comment read.

Federal Register Notices:
Equal Access to Housing in HUD's Native American and Native Hawaiian Programs-Regardless of Sexual Orientation or Gender Identity (May 9, 2016)
Equal Access to Housing in HUD's Native American and Native Hawaiian Programs-Regardless of Sexual Orientation or Gender Identity; Correction (May 18, 2016)