LGBTQ Advocates to SCOTUS: Don’t Let Cities Criminalize Houseless People

LGBTQ people (and youth especially) are much more likely to experience discrimination, trauma and the sting of family rejection than their straight and cisgender peers, and that’s a big reason why the issue of homelessness has been a major focus of queer life and organizing reaching back deep into history.

Now, as the Supreme Court considers Grants Pass v. Johnson, a landmark case poised to determine the rights of people who have no choice but to sleep outside during a housing crisis unprecedented in modern times, a coalition of 46 rights groups are warning that queer people, and youth in particular, face staggering rates of houselessness compared to their population size.

“Homelessness … is really an issue of paramount concern to LGBTQI+ rights advocates because it is a LGBTQI+ rights issue,” said Chinyere Ezie, a senior staff attorney at the Center for Constitutional Rights, in an interview. “There is a crisis nationwide of affordability, but there is also a discrimination crisis that is making LGBTQI+ people more vulnerable.”

Although they make up only 10 percent of the U.S. population, about 40 percent of houseless youth identify as LGBTQI+, and LGBTQI+ youth make up 65 percent of the chronically houseless youth population, according to an amicus brief filed with the Supreme Court by the Center for Constitutional Rights and allied LGBTQ groups. Transgender people are eight times more likely to be recently unhoused than their cisgender peers, and discrimination in employment and housing is often compounded for trans women of color.

In cities and states across the country, queer and trans youth activists are deeply involved in the social movements acting in solidarity with houseless people, even when they are experiencing housing insecurity themselves.

Grants Pass v. Johnson is the most significant Supreme Court case about the rights of houseless people in decades. At its core, the case considers whether cities can punish people with fines, fees, expulsion from public places and jail time for such activities as sleeping outside and carrying a pillow or blanket, even when there are no safe shelter options, according to the National Homelessness Law Center. Oral arguments are scheduled for April 22.

A legal challenge to five anti-camping ordinances in Grants Pass, Oregon, filed by two local unhoused people has wound through the lower courts since at least 2018. The ordinances also bar people from sleeping in their cars in public parks. Local lawmakers who passed the ordinances have openly stated that their goal is to force unhoused people out of Grants Pass, a city of 40,000 residents that has no homeless shelters, according to the Center for Constitutional Rights.

Previously, the Ninth Circuit Court of Appeals in California sided with the plaintiffs, holding that criminalizing people for sleeping outside when they have no safe place to go constitutes cruel and unusual punishment under the Eighth Amendment.

“The laws at issue are functionally making it a crime to be homeless, and instead of offering people housing, it’s putting handcuffs on them when they have no choice of where to go,” Ezie said.

However, as cities with skyrocketing housing costs face raging debates and conflicting court rulings over what to do about increasingly visible urban encampments that raise public health concerns, supporters of a crackdown on the houseless are asking the Supreme Court to reverse the Ninth Circuit decision. A reversal would provide cities with sweeping power to pass laws allowing police to clear encampments and punish houseless residents for living in cars and tents, even if they have nowhere else to go.

Although they make up only 10 percent of the U.S. population, about 40 percent of houseless youth identify as LGBTQI+, and LGBTQI+ youth make up 65 percent of the chronically houseless youth population.

“It’s certainly likely the impact of any Supreme Court decision will be sweeping in this case,” Ezie said. “There are so many jurisdictions trying to grapple with the affordability crisis and the housing crisis that is accompanying it, and the homelessness that has resulted, and we think it’s critical that the Supreme Court make it clear that criminal punishment — arrests, fines, fees and jails — is not the way for dealing with America’s poor.”

State leaders and city officials say they are walking a fine line between competing local laws and legal rulings as they face constituents angry about houseless people sleeping and living outside. Cities such as Los Angeles, California, and Phoenix, Arizona, filed briefs with the Supreme Court pleading for guidance.

“California is investing billions to build housing and provide the services needed to get people out of tents and into safer situations,” California Gov. Gavin Newsom said in a statement addressing the Supreme Court case last month. “However, our best efforts are being blocked because of sweeping injunctions that delay progress and fail to provide any consistent guidance for local authorities to abide by.”

The Supreme Court’s ruling will be particularly critical for LGBTQ youth, who are more likely than their peers to face the kind of discrimination in housing, education, health care and employment that can lead to housing instability. Queer and trans youth are also much more likely to experience what Ezie calls “family pushout,” or being forced to leave their homes because their family refuses to accept their sexual orientation or gender identity.

Ezie said the amicus brief details what advocates call the “discrimination to prison pipeline” that is fueling a crisis of poverty, underemployment and homelessness, putting queer and trans people on the margins at greater risk of being targeted by police.

“Employment discrimination and discrimination in education … coupled with the family pushout amongst youth, coupled with the ways that lots of economic precarity and extreme poverty pervade life for trans women of color — all of these things are push factors for the homelessness crisis that LGBTQI+ people feel in a really personal manner,” Ezie said.

Mikaila Hernández, a Bertha Justice Fellow at the Center for Constitutional Rights and coauthor of the amicus brief, added that homeless shelters are often hostile environments for LGBTQI+ people who must contend with threat of sexual harassment and abuse. Some shelters are religious institutions with rules that discriminate against queer people, such as requiring them to segregate by gender or attend church in order to stay the night.

Hernández and Ezie said there are no public shelters provided by the city in Grants Pass, but there are charities and a privately run religious shelter in the region. That shelter mandates religious observance and only offers a small number of beds, and lower courts did not consider the facility a viable or accessible option for responding to the local homelessness crisis.

“That is an additional push factor, with people choosing to stay outside or in a vehicle instead of a shelter,” Hernández said. “With these ordinances that also criminalize homelessness, it’s almost as if they are particularly targeting LGBTQI+ folks.”