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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 ā€” in some circumstances and when certain conditions are met ā€” 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 departmentā€™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

ā€œThe 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,ā€ the groupā€™s president, Rodrigo Heng-Lehtinen, said in a statement Friday.

ā€œWhile there is still more to be accomplished surrounding this proposal, we appreciate the robust action of the Department of Education,ā€ Heng-Lehtinen said, adding, ā€œNCTE 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.ā€

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.) ā€” who introduced a federal ban that would prohibit all trans women and girls from participating in sports teams consistent with their gender identity ā€” 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 Educationā€™s bigoted position under former President Donald Trump,” adding that “LGBTQ advocates expect much more of Biden, and any apprehension about the ruleā€™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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First lady warns Trump is ‘dangerous to the LGBTQ community’ at HRC event

Jill Biden spoke in Arlington, Va., on Friday

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Human Rights Campaign President Kelley Robinson introduces the First Lady Dr. Jill Biden at the Human Rights Campaign's Equality in Action event on Friday, April 12, 2024 in Arlington, Va. (Kevin Wolf/AP Images for Human Rights Campaign)

Delivering a keynote address at the Human Rights Campaign’s Equality in Action event Friday, First lady Jill Biden warned former President Donald Trump is “a bully” who is “dangerous to the LGBTQ community.”

Her appearance at the three-day volunteer and board gathering at the Sheraton Pentagon City in Arlington, Va., comes as part of the Biden-Harris reelection campaign’s “Out for Biden” program, which aims to “mobilize LGBTQ+ voters, communities, and leaders across the country.ā€

“Today, this community is under attack,” Biden said. “Rights are being stripped away. freedoms are eroding. More and more state laws are being passed targeting this community. Just last month, we had to fend off more than 50 anti-gay amendments that Republicans tried to force into the government funding bill.”

“These were extreme measures aimed directly at this community ā€” measures that would have limited health care and weakened protections for same sex couples,” she said. “And they served only one purpose to spread hate and fear.”

In a nod to her long career as an educator, Biden said, “History teaches us that our rights and freedoms don’t disappear overnight. They disappear slowly. Subtly. Silently.”

She continued, “A book ban. A court decision. A ‘Don’t Say Gay’ law. One group of people loses their rights and then another. And another. Until one day you wake up and no longer live in a democracy … This is our chapter of history and it’s up to us how it ends.”

Biden then highlighted some of the advancements for LGBTQ rights secured under the Biden-Harris administration.

“Thanks to President Biden, marriage equality is now the law of the land,” she said. “He ended the ban on gay and bisexual men donating blood. He’s made it possible for trans Americans to serve openly and honorably in our military. And he’s standing firmly against conversion therapy.”

“Yes, there are forces outside these walls that are trying to erase these hard fought gains, trying to unwind all the progress that we’ve made,” Biden said. “They want to take our victories away, but we won’t let them. Your president will not let them ā€” I will not let them.”

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‘Out for Biden-Harris’ LGBTQ-targeted campaign is launched

Several events planned in coming weeks

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President Joe Biden delivers remarks at a Pride celebration, June 10, 2023, at the White House. (Official White House Photo by Adam Schultz)

The Biden-Harris campaign on Wednesday debuted “Out for Biden-Harris,” which is a “national organizing and engagement program to mobilize LGBTQ+ voters, communities, and leaders across the country.”

Out for Biden-Harris “will train supporters to organize within their own networks and leverage messengers from the community to ensure we are meeting LGBTQ+ voters where they are,” the campaign wrote in a press release announcement.

“From drag queens to elected leaders to LGBTQ+ faith leaders, Team Biden-Harris will use a wide range of validators to communicate whatā€™s at stake for the LGBTQ+ community in this election and why itā€™s critical that we vote for Joe Biden and Kamala Harris.”

The campaign also previewed some of the events and initiatives in coming weeks, which will include:

  • A virtual organizing call featuring actor Wilson Cruz, Congressman Robert Garcia, HRC President Kelley Robinson, to mobilize LGBTQ+ supporters;
  • A series of virtual relational organizing trainings focused on activating and reaching new volunteers targeting battleground voters. The campaign will be engaging trusted messengers, including high-profile and trusted messengers in the LGBTQ+ community, like Brita Filter, Danica Roem, Gina Ortiz Jones, and Rev.
  • Hosting a series of Out For Biden-Harris house parties and community events including events in Phoenix, Arizona, Ferndale, Michigan, Milwaukee, Wisconsin, Philadelphia, Pittsburgh, and Harrisburg, Pennsylvania, and Las Vegas, Nevada to mobilize supporters.
  • First Lady Jill Biden will be a featured speaker at the Human Rights Campaign Equality In Action Conference bringing together a network of 400 organizers and activists in Arlington, VA.

The campaign noted that LGBTQ voters will be “a key part” of its coalition, while 39 percent of voters consider LGBTQ equality a “make-or-break issue.”

“In 2020, nearly 11,000 LGBTQ+ volunteers mobilized to help elect President Biden and Vice President Harris,” the campaign wrote. “This year, Out for Biden-Harris will re-engage these supporters and build on their work. The program is designed around the idea that there is no better messenger to mobilize LGBTQ+ voters than their friends and neighbors to bring new supporters into our campaign.”

The Biden-Harris administration is the most pro-LGBTQ in history, and LGBTQ groups with a combined 3.8 million members have endorsed President Joe Biden’s reelection campaign.

However, “the fight for equality for all Americans is at stake this November as Trump and his allies plan to roll back the rights and freedoms of LGBTQ+ Americans,” the Biden campaign wrote. “Trump and his MAGA allies are running on an extreme, anti-LGBTQ+ agenda which would push to discriminate against the LGBTQ+ community, even going after the right to marry who you love.”

ā€œLGBTQ+ voters are a force to be reckoned with. They were critical to our victory in 2020, and they will be critical to winning again this November,” said Biden-Harris 2024 Campaign Manager Julie Chavez Rodriguez. “Thatā€™s why weā€™re thrilled to launch Out for Biden-Harris, which will harness the LGBTQ+ communityā€™s organizing prowess to reelect President Biden and Vice President Harris this November.ā€

Chavez Rodriguez continued, ā€œLGBTQ+ Americans couldnā€™t have more at stake this election: Donald Trump and his extremist allies are running to gut LGBTQ+ rights and erase history as their top priorities. LGBTQ+ Americans deserve leaders who will fight for every Americanā€™s freedom and dignity. Thatā€™s what President Biden and Vice President Harris have done throughout their time in office, and what they will do if reelected, including pressing Congress to pass the Equality Act.”

“There has never been a more critical time to protect the rights of all Americans, no matter who you love or how you identify, and Out for Biden-Harris will be critical to not just safeguarding, but strengthening the rights and voice of every single American,” she said.

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Melania Trump to host Log Cabin Republicans event

Former first lady is close with the group

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Melania Trump, gay news, Washington Blade
Former First Lady Melania Trump (Washington Blade photo by Michael Key)

Former first lady Melania Trump is back on the campaign trail with plans to host a fundraising event for the conservative LGBT group Log Cabin Republicans on April 20 at Mar-a-Lago, Politico reported on Thursday.

Funds will be used to support the group’s ā€œRoad to Victoryā€ program, which will target voters in swing states. LCR has had a close relationship with Mrs. Trump, who was a special guest for its Spirit of Lincoln Gala in 2021, where she received the Spirit of Lincoln Award.

Politico reports that the host committee for this month’s event will include GOP donors Saul Fox, Amanda Schumacher, Bill White, Bryan Eure and Richard Grenell, who is gay and served as ambassador to Germany and acting director of national intelligence during the Trump administration.

ā€œMelania Trumpā€™s work as first lady, from helping children reach their full potential to championing a more inclusive Republican Party, has been historic,ā€ LCR President Charles Moran said in a 2021 press release concerning the Spirit of Lincoln event.

ā€œHer vocal support of Log Cabin Republicans has been a signal to Republicans everywhere that it is possible to simultaneously be conservative and support equality under the law for all Americans,” he said.

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