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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

Dina Titus introduces bill to require U.S. to promote LGBTQ, intersex rights abroad

White House reconsidering aid to Uganda over Anti-Homosexuality Act

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U.S. Rep. Dina Titus (D-Nevada) (Screen capture via Dina Titus YouTube)

U.S. Rep. Dina Titus (D-Nev.) on Thursday introduced a bill that would require the U.S. to promote LGBTQ and intersex rights abroad through its foreign policy.

The Human Rights Campaign, the Council for Global Equality, the National Center for Transgender Equality, ORAM (Organization for Refuge, Asylum and Migration), Outright International, Rainbow Railroad and the Trevor Project are among the organizations that support the Greater Leadership Overseas for the Benefit of Equality (GLOBE) Act. U.S. Sen. Edward Markey (D-Mass.) will introduce the bill in the U.S. Senate. 

Titus on Tuesday told the Washington Blade during an exclusive interview the bill, among other things, would endorse the selective use of existing sanctions to punish those responsible for murders and other human rights abuses against LGBTQ and intersex people. She also said the measure would require the State Department to allow LGBTQ and intersex people to choose their gender marker on passports and other travel documents.

“It’s a way of putting into action our attempts to be a leader in the area of LGBTQ+ rights and to be a leader, not just at home, but around the world,” said Titus.

President Joe Biden in 2021 signed a memorandum that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of the Biden-Harris administration’s overall foreign policy.

Jessica Stern has been the special U.S. envoy for the promotion of LGBTQ and intersex rights since 2021. She told the Blade in a previous interview the White House’s continued support of LGBTQ and intersex rights includes marriage equality in countries where activists say such a thing is possible through legislation or the judicial process.

The State Department last year began to offer passports with an “X” gender marker. The U.S. Agency for International Development and the President’s Emergency Plan for AIDS Relief has delivered millions of doses of antiretroviral drugs for Ukrainians with HIV/AIDS.

U.S. Ambassador to the U.N. Linda Thomas-Greenfield in March chaired a U.N. meeting that focused on the integration of LGBTQ and intersex rights into the U.N. Security Council’s work.

Biden, along with U.S. Sen. Ted Cruz (R-Texas) others, have condemned the signing of Uganda’s Anti-Homosexuality Act that contains a death penalty provision for “aggravated homosexuality.” The National Security Council has said it will “evaluate” the law’s implications in terms of U.S. aid to the country.

Titus is among the lawmakers who have previously introduced bills that are similar to the GLOBE Act. 

She noted the Anti-Homosexuality Act when she spoke with the Blade. Titus also discussed Republican-led efforts to curtail LGBTQ rights in Florida and other states.

“It’s harder, certainly, to get Republicans on board, but I’m optimistic,” she said when asked if she expects any Republicans will co-sponsor his bill. “The more they hear from their constituents and the more they see the backlash to what some state legislatures are doing and the more they hear from members of their own families, I think that we may get some to join us in this.”

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Politics

Mark Milley defends cancellation of drag show at Nevada Air Force base

Move followed pressure from anti-LGBTQ Rep. Gaetz

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U.S. Army General Mark Milley, chair of the U.S. Joint Chiefs of Staff (Official photo via U.S. Department of Defense)

U.S. Army General Mark Milley, chair of the U.S. Joint Chiefs of Staff, told CNN’s Oren Liebermann during an interview Monday that last week’s cancellation of a drag show at Nellis Air Force base in Nevada was “the absolute right thing to do.”

The top U.S. military officer said the decision came from U.S. Secretary of Defense Lloyd Austin, but added that he agreed with the move.

A Pentagon source familiar with the matter told the Washington Blade on Thursday that Milley informed Air Force Chief of Staff Gen. Charles Q. Brown, Jr. that it is not Pentagon policy to fund drag shows on bases and the show needed to be canceled or moved off base. 

He echoed those comments during Monday’s interview, asserting that the performances “were never part of [Department of Defense] policy to begin with, and they’re certainly not funded by federal funds.”

“DoD resources should be used for mission-essential operations, not diverted toward initiatives that create cultural fissures within our service ranks,” anti-LGBTQ U.S. Rep. Matt Gaetz (R-Fla.) said in a May 23 letter to Milley and Austin.

“I find it completely unacceptable that DoD is using taxpayer dollars to fund DEI programs that are divisive in nature,” said Gaetz, referring to diversity, equity, and inclusion – programs typically administered by corporations that have increasingly become targets of conservative outrage.

Milley pushed back on accusations that the military had “gone woke” during the interview, which took place in Normandy, France, marking the 79th anniversary of the D-Day invasion into Nazi-occupied Europe on June 6, 1944.

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Politics

Chris Christie, Mike Pence officially enter 2024 presidential race

Former vice president has long anti-LGBTQ record

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Former New Jersey Gov. Chris Christie (R) and former Vice President Mike Pence (R) (Washington Blade photos by Michael Key)

During a town hall event Tuesday in New Hampshire and in a launch video released Wednesday morning, former New Jersey Gov. Chris Christie (R) and former Vice President Mike Pence (R) entered the 2024 presidential race.

For years, both were staunch allies of the current Republican frontrunner, former President Donald Trump, breaking with him only after the Jan. 6 attack on the U.S. Capitol, which came after Pence’s refusal to overturn the 2020 election results and prompted Christie to declare Trump unfit for a second term.

Echoing other critical comments he has made in recent months, the former governor’s announcement Tuesday directly took aim at Trump, “a lonely, self-consumed, self-serving mirror hog” who “is not a leader.”

For his part, Pence neither mentioned Trump by name nor included any photos or video footage of the former president in his announcement video, acknowledging him only indirectly by asserting that “different times call for different leadership.”

Christie, Pence, and Trump will also be squaring off against several other Republican candidates in the GOP presidential primary: former South Carolina Gov. Nikki Haley, who also served in the Trump administration, U.S. Sen. Tim Scott (S.C.), former Arkansas Gov. Asa Hutchinson, entrepreneur Vivek Ramaswamy, talk radio host Larry Elder, and Florida Gov. Ron DeSantis.

An evangelical born-again Christian, Pence has opposed LGBTQ rights stridently and consistently throughout his career in politics as a member of the U.S. House of Representatives, as governor of Indiana, and then as vice president.

Declaring him the “Worst Vice President for LGBTQ People In Modern History,” the Human Rights Campaign chronicled a list of Pence’s anti-LGBTQ actions and statements over the years, including his endorsement of conversion therapy and opposition to hate crime laws for their inclusion of violence motivated by animus toward the victim’s sexual orientation or gender identity.

In February, a group formed by Pence and financed by his supporters ran ads in Iowa to rally conservative opposition to pro-trans policies in schools.

By contrast, Christie has a far more moderate record with respect to LGBTQ matters. “If someone is born that way, it’s very difficult to say then that that’s a sin,” he said in 2013, while signing New Jersey’s ban on conversion therapy.

The GLAAD Accountability Project, however, notes Christie’s veto of a bill in 2014 that would have allowed trans people in the state to change the gender designation listed on their birth certificates. The group also highlighted his veto of a marriage equality bill in 2012.

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