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Department of Education’s draft Title IX rule draws mixed reactions

Public comment period to come

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U.S. Department of Education headquarters in D.C. (Photo courtesy of GSA/U.S. Department of Education)

The U.S. Department of Education has drawn mixed reactions over its issuance on Thursday of a Notice of Proposed Rulemaking for a draft regulation governing the eligibility frameworks for transgender athletes who compete on school sports teams.

According to an agency fact sheet, the proposal would affirm “that policies violate Title IX when they categorically ban transgender students” from participating on teams that align with their gender identity.

However, if the policy is adopted as written, schools may implement criteria that — in some circumstances and when certain conditions are met — may be used to prohibit these student athletes from competing.

“At this time, the department is only issuing a proposed rule, which does not require changes in policies or practices by recipients of federal funding,” an agency spokesperson told the Washington Blade in an emailed statement.

“We look forward to comments from states and others during the public comment period,” the spokesperson said, adding, “Title IX is the law of the land, and all federally funded education programs and activities must comply with Title IX and the department’s regulations implementing Title IX.”

Public comments on the draft proposal will be solicited for 30 days beginning when the document is published in the Federal Register, and interested parties are urged to provide input via the Federal eRulemaking Portal.

Under the proposed policy, schools could lawfully limit the participation of trans athletes “in some instances, particularly in competitive high school and college athletic environments,” including for purposes of “ensuring fairness in competition or preventing sports-related injury.”

However, such eligibility criteria must “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied” while considering “differences in grade and education level, level of competition, and sports.”

The fact sheet indicates that “the proposed regulation supports Title IX’s nondiscrimination requirement, while providing flexibility for schools to achieve important educational objectives through their athletic program.”

For purposes of limiting or denying eligibility, schools may include criteria such as “a sex marker or an identification document, such as a birth certificate, passport or driver’s license,” as well as other means of collecting this information like “physical examinations or medical testing or treatment related to a student’s sex characteristics.” 

Proposal earns criticism and support from Democrats and trans stakeholders

“The National Center for Transgender Equality applauds the Department of Education for acknowledging in this proposed rule that categorical bans on participation in school sports based on transgender status are inappropriate, unlawful and fundamentally un-American,” the group’s president, Rodrigo Heng-Lehtinen, said in a statement Friday.

“While there is still more to be accomplished surrounding this proposal, we appreciate the robust action of the Department of Education,” Heng-Lehtinen said, adding, “NCTE looks forward to submitting public comments, as well as working alongside the administration to further remove these inappropriate barriers, allowing for equal participation by transgender youth.”

U.S. Rep. Mark Pocan (D-Wis.), chair of the Congressional Equality Caucus, issued a similar statement on Thursday in which he and the caucus pledged to “continue to further analyze this rule and what restrictions may or may not be permitted.”

“We will be providing our feedback to the Department of Education to ensure trans students are afforded their full civil rights protections under Title IX,” Pocan said.

GOP lawmakers like U.S. Rep. Greg Steube (R-Fla.) — who introduced a federal ban that would prohibit all trans women and girls from participating in sports teams consistent with their gender identity — denounced the proposal as an attempt to “erase women’s sports.”

Shannon Minter, Legal Director of the National Center for Lesbian Rights, tweeted praise for the Department’s move, writing: “As a transgender lawyer who has represented many transgender athletes over the past 20 years, I appreciate this proposed rule, which will be a huge help in challenging state bans that are devastating for trans kids.”

Minter also re-tweeted an article by Slate’s Mark Joseph Stern, who wrote, “It is clearly designed to survive a legal challenge by locating a middle ground that grants protections to transgender students that are strong but not absolute.”

Stern’s piece called the rule “certainly a huge improvement from the Department of Education’s bigoted position under former President Donald Trump,” adding that “LGBTQ advocates expect much more of Biden, and any apprehension about the rule’s less-than-complete support for equality is understandable.”

Meanwhile, Democratic Congresswoman Alexandria Ocasio-Cortez (D-N.Y.) slammed the draft rule on Twitter, urging the Biden administration to “walk this back.”

Some trans activists, including legislative researcher Erin Reed, also spoke out against the proposed rule, arguing it would provide pathways for schools to implement discriminatory policies while incentivizing intrusive gender policing of female student athletes.

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Congress

Top Congressional Democrats reintroduce Equality Act on Trump’s 100th day in office

Legislation would codify federal LGBTQ-inclusive non-discrimination protections

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Senate Democratic Leader Chuck Schumer (N.Y.) and Democratic members reintroduce the Equality Act, April 29 2025 (Washington Blade photo by Christopher Kane)

In a unified display of support for LGBTQ rights on President Donald Trump’s 100th day in office, congressional Democrats, including leadership from the U.S. House and U.S. Senate, reintroduced the Equality Act on Tuesday.

The legislation, which would prohibit discrimination on the basis of sexual orientation and gender identity, codifying these protections into federal law in areas from jury service to housing and employment, faces an unlikely path to passage amid Republican control of both chambers of Congress along with the White House.

Speaking at a press conference on the grass across the drive from the Senate steps were Senate Minority Leader Chuck Schumer (N.Y.), House Speaker Emerita Nancy Pelosi (Calif.), House Democratic Whip Katherine Clark (Mass.), U.S. Sen. Tammy Baldwin (Wis.), who is the first out LGBTQ U.S. Senator, U.S. Rep. Mark Takano (Calif.), who is gay and chairs the Congressional Equality Caucus, U.S. Rep. Chris Pappas (N.H.), who is gay and is running for the U.S. Senate, U.S. Sen. Cory Booker (N.J.), and U.S. Sen. Jeff Merkley (Ore.).

Also in attendance were U.S. Rep. Sarah McBride (Del.), who is the first transgender member of Congress, U.S. Rep. Dina Titus (Nev.), U.S. Rep. Mike Quigley (Ill.), and representatives from LGBTQ advocacy groups including the Human Rights Campaign and Advocates 4 Trans Equality.

Responding to a question from the Washington Blade on the decision to reintroduce the bill as Trump marks the hundredth day of his second term, Takano said, “I don’t know that there was a conscious decision,” but “it’s a beautiful day to stand up for equality. And, you know, I think the president is clearly hitting a wall that Americans are saying, many Americans are saying, ‘we didn’t vote for this.'”

A Washington Post-ABC News-Ipsos poll released Sunday showed Trump’s approval rating in decline amid signs of major opposition to his agenda.

“Many Americans never voted for this, but many Americans, I mean, it’s a great day to remind them what is in the core of what is the right side of history, a more perfect union. This is the march for a more perfect union. That’s what most Americans believe in. And it’s a great day on this 100th day to remind our administration what the right side of history is.”

Merkley, when asked about the prospect of getting enough Republicans on board with the Equality Act to pass the measure, noted that, “If you can be against discrimination in employment, you can be against discrimination in financial contracts, you can be against discrimination in mortgages, in jury duty, you can be against discrimination in public accommodations and housing, and so we’re going to continue to remind our colleagues that discrimination is wrong.”

The Employment Non-Discrimination Act, which was sponsored by Merkley, was passed by the Senate in 2013 but languished in the House. The bill was ultimately broadened to become the Equality Act.

“As Speaker Nancy Pelosi has always taught me,” Takano added, “public sentiment is everything. Now is the moment to bring greater understanding and greater momentum, because, really, the Congress is a reflection of the people.”

“While we’re in a different place right this minute” compared to 2019 and 2021 when the Equality Act was passed by the House, Pelosi said she believes “there is an opportunity for corporate America to weigh in” and lobby the Senate to convince members of the need to enshrine federal anti-discrimination protections into law “so that people can fully participate.”

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Politics

George Santos sentenced to 87 months in prison for fraud case

Judge: ‘You got elected with your words, most of which were lies.’

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Former U.S. Rep. George Santos (Washington Blade photo by Christopher Kane)

Disgraced former Republican congressman George Santos was sentenced to 87 months in prison on Friday, after pleading guilty last year to federal charges of wire fraud and aggravated identity theft. 

“Mr. Santos, words have consequences,” said Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York. “You got elected with your words, most of which were lies.”

The first openly gay GOP member of Congress, Santos became a laughing stock after revelations came to light about his extensive history of fabricating and exaggerating details about his life and career.

His colleagues voted in December 2023 to expel him from Congress. An investigation by the U.S. House Ethics Committee found that Santos had used pilfered campaign funds for cosmetic procedures, designer fashion, and OnlyFans.

Federal prosecutors, however, found evidence that “Mr. Santos stole from donors, used his campaign account for personal purchases, inflated his fund-raising numbers, lied about his wealth on congressional documents and committed unemployment fraud,” per the New York Times.

The former congressman told the paper this week that he would not ask for a pardon. Despite Santos’s loyalty to President Donald Trump, the president has made no indication that he would intervene in his legal troubles.

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Congress

Democratic lawmakers travel to El Salvador, demand information about gay Venezuelan asylum seeker

Congressman Robert Garcia led delegation

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Andry Hernández Romero (photo credit: Immigrant Defenders Law Center)

California Congressman Robert Garcia on Tuesday said the U.S. Embassy in El Salvador has agreed to ask the Salvadoran government about the well-being of a gay asylum seeker from Venezuela who remains incarcerated in the Central American country.

The Trump-Vance administration last month “forcibly removed” Andry Hernández Romero, a stylist who asked for asylum because of persecution he suffered because of his sexual orientation and political beliefs, and other Venezuelans from the U.S. and sent them to El Salvador.

The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an “international terrorist organization.” President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.”

Garcia told the Washington Blade that he and three other lawmakers — U.S. Reps. Maxwell Alejandro Frost (D-Fla.), Maxine Dexter (D-Ore.), and Yassamin Ansari (D-Ariz.) — met with U.S. Ambassador to El Salvador William Duncan and embassy staffers in San Salvador, the Salvadoran capital.

“His lawyers haven’t heard from him since he was abducted during his asylum process,” said Garcia.

The gay California Democrat noted the embassy agreed to ask the Salvadoran government to “see how he (Hernández) is doing and to make sure he’s alive.”

“That’s important,” said Garcia. “They’ve agreed to that … we’re hopeful that we get some word, and that will be very comforting to his family and of course to his legal team.”

The U.S. Embassy in El Salvador in 2023. (Photo courtesy of the U.S. Embassy of El Salvador’s Facebook page)

Garcia, Frost, Dexter, and Ansari traveled to El Salvador days after House Oversight and Government Reform Committee Chair James Comer (R-Ky.) and House Homeland Security Committee Chair Mark Green (R-Tenn.) denied their request to use committee funds for their trip.

“We went anyways,” said Garcia. “We’re not going to be intimidated by that.”

Salvadoran President Nayib Bukele on April 14 met with Trump at the White House. U.S. Sen. Chris Van Hollen (D-Md.) three days later sat down with Kilmar Abrego Garcia, a Maryland man who the Trump-Vance administration wrongfully deported to El Salvador on March 15.

Abrego was sent to the country’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT. The Trump-Vance administration continues to defy a U.S. Supreme Court ruling that ordered it to “facilitate” Abrego’s return to the U.S.

Garcia, Frost, Dexter, and Ansari in a letter they sent a letter to Duncan and Secretary of State Marco Rubio on Monday demanded “access to” Hernández, who they note “may be imprisoned at” CECOT. A State Department spokesperson referred the Blade to the Salvadoran government in response to questions about “detainees” in the country.

Garcia said the majority of those in CECOT who the White House deported to El Salvador do not have criminal records.

“They can say what they want, but if they’re not presenting evidence, if a judge isn’t sending people, and these people have their due process, I just don’t understand how we have a country without due process,” he told the Blade. “It’s just the bedrock of our democracy.”

President Donald Trump greets Salvadoran President Nayib Bukele at the White House on April 14, 2025. (Public domain photo)

Garcia said he and Frost, Dexter, and Ansari spoke with embassy staff, Salvadoran journalists and human rights activists and “anyone else who would listen” about Hernández. The California Democrat noted he and his colleagues also highlighted Abrego’s case.

“He (Hernández) was accepted for his asylum claim,” said Garcia. “He (Hernández) signed up for the asylum process on an app that we created for this very purpose, and then you get snatched up and taken to a foreign prison. It is unacceptable and inhumane and cruel and so it’s important that we elevate his story and his case.”

The Blade asked Garcia why the Trump-Vance administration is deporting people to El Salvador without due process.

“I honestly believe that he (Trump) is a master of dehumanizing people, and he wants to continue his horrendous campaign to dehumanize migrants and scare the American public and lie to the American public,” said Garcia.

The State Department spokesperson in response to the Blade’s request for comment referenced spokesperson Tammy Bruce’s comments about Van Hollen’s trip to El Salvador.

“These Congressional representatives would be better off focused on their own districts,” said the spokesperson. “Instead, they are concerned about non-U.S. citizens.”

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