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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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After Biden signs TikTok ban its CEO vows federal court battle

ā€œRest assured, we arenā€™t going anywhere,ā€ CEO said

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TikTok mobile phone app. (Screenshot/YouTube)

President Joe Biden signed an appropriations bill into law on Wednesday that provides multi-billion dollar funding and military aid for Ukraine, Israel, and Taiwan after months of delay and Congressional infighting.

A separate bill Biden signed within the aid package contained a bipartisan provision that will ban the popular social media app TikTok from the United States if its Chinese parent company ByteDance does not sell off the American subsidiary.

Reacting, TikTok CEO Shou Zi Chew said Wednesday that the Culver City, Calif.-based company would go to court to try to remain online in the U.S.

In a video posted on the company’s social media accounts, Chew denounced the potential ban: ā€œMake no mistake, this is a ban, a ban of TikTok and a ban on you and your voice,ā€ Chew said. ā€œRest assured, we arenā€™t going anywhere. We are confident and we will keep fighting for your rights in the courts. The facts and the constitution are on our side, and we expect to prevail,ā€ he added.

White House Press Secretary Karine Jean-Pierre adamantly denied during a press briefing on Wednesday that the bill constitutes a ban, reiterating the administration’s hope that TikTok will be purchased by a third-party buyer and referencing media reports about the many firms that are interested.

Chew has repeatedly testified in both the House and Senate regarding ByteDance’s ability to mine personal data of its 170 million plus American subscribers, maintaining that user data is secure and not shared with either ByteDance nor agencies of the Chinese government. The testimony failed to assuage lawmakers’ doubts.

In an email, the former chair of the House Intelligence Committee, U.S. Rep. Adam Schiff (D-Calif.), who doesn’t support a blanket ban of the app, told the Washington Blade:

ā€œAs the former chairman of the House Intelligence Committee, I have long worked to safeguard Americansā€™ freedoms and security both at home and abroad. The Chinese Communist Partyā€™s ability to exploit private user data and to manipulate public opinion through TikTok present serious national security concerns. For that reason, I believe that divestiture presents the best option to preserve access to the platform, while ameliorating these risks. I do not support a ban on TikTok while there are other less restrictive means available, and this legislation will give the administration the leverage and authority to require divestiture.ā€

A spokesperson for U.S. Sen. Alex Padilla (D-Calif.) told the Blade: ā€œSenator Padilla believes we can support speech and creativity while also protecting data privacy and security. TikTokā€™s relationship to the Chinese Communist Party poses significant data privacy concerns. He will continue working with the Biden-Harris administration and his colleagues in Congress to safeguard Americansā€™ data privacy and foster continued innovation.ā€

The law, which givesĀ ByteDance 270 days to divest TikTokā€™s U.S. assets, expires with a January 19, 2025 deadline for a sale. The date is one day before Biden’s term is set to expire, although he could extend the deadline by three months if he determines ByteDance is making progress or the transaction faces uncertainty in a federal court.

Former President Donald Trump’s executive order in 2020, which sought to ban TikTok and Chinese-owned WeChat, a unit of Beijing-based Tencent, in the U.S., was blocked by federal courts.

TikTok has previously fought efforts to ban its widely popular app by the state of Montana last year, in a case that saw a federal judge in Helena block that state ban, citing free-speech grounds.

The South China Morning Post reported this week that the four-year battle over TikTok is a significant front in a war over the internet and technology between Washington and Beijing. Last week, Apple said China had ordered it to remove Meta Platformsā€™s WhatsApp and Threads from its App Store in China over Chinese national security concerns.

A spokesperson for the ACLU told the Blade in a statement that “banning or requiring divestiture of TikTok would set an alarming global precedent for excessive government control over social media platforms.”

LGBTQ TikToker usersĀ are alarmed, fearing that a ban will represent the disruption of networks of support and activism. However, queer social media influencers who operate on multiple platforms expressed some doubts as to long term impact.

Los Angeles Blade contributor Chris Stanley told the Blade:

“It might affect us slightly, because TikTok is so easy to go viral on. Which obviously means more brand deals, etc. However they also suppress and shadow ban LGBTQ creators frequently. But we will definitely be focusing our energy more on other platforms with this uncertainty going forward. Lucky for us, we arenā€™t one trick ponies and have multiple other platforms built.”

Brooklyn, N.Y.,-based gay social media creator and influencer Artem Bezrukavenko told the Blade:

“For smart creators it wonā€™t because they have multiple platforms. For people who put all their livelihood yes. Like people who do livestreams,” he said adding: “Personally Iā€™m happy it gets banned or American company will own it so they will be less homophobic to us.”

TikTokā€™s LGBTQ following has generally positive experiences although there have been widely reported instances of users, notably transgender users, seemingly targeted by the platformā€™s algorithms and having their accounts banned or repeatedly suspended.

Of greater concern is the staggering rise in anti-LGBTQ violenceĀ and threats on the platform prompting LGBTQ advocacy group GLAAD, in its annual Social Media Safety Index, to give TikTok a failing score on LGBTQ safety.

Additional reporting by Christopher Kane

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Smithsonian staff concerned about future of LGBTQ programming amid GOP scrutiny

Secretary Lonnie Bunch says ‘LGBTQ+ content is welcome’

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Lonnie G. Bunch III, secretary of the Smithsonian Institution, appears before a Dec. 2023 hearing of the U.S. Committee on House Administration (Screen capture: Forbes/YouTube)

Staff at the Smithsonian Institution are concerned about the future of LGBTQ programming as several events featuring a drag performer were cancelled or postponed following scrutiny by House Republicans, according to emails reviewed by the Washington Post.

In December, Secretary Lonnie G. Bunch III appeared before a hearing led by GOP members of the Committee on House Administration, who flagged concerns about the Smithsonian’s involvement in “the Left’s indoctrination of our children.”

Under questioning from U.S. Rep. Stephanie Bice (R-Okla.), Bunch said he was “surprised” to learn the Smithsonian had hosted six drag events over the past three years, telling the lawmakers “It’s not appropriateĀ to expose children” to these performances.

Collaborations with drag artist Pattie Gonia in December, January, and March were subsequently postponed or cancelled, the Post reported on Saturday, adding that a Smithsonian spokesperson blamed ā€œbudgetary constraints and other resource issuesā€ and the museums are still developing programming for Pride month in June.

ā€œI, along with all senior leaders, take seriously the concerns expressed by staff and will continue to do so,ā€ Bunch said in a statement to the paper. ā€œAs we have reiterated, LGBTQ+ content is welcome at the Smithsonian.ā€

The secretary sent an email on Friday expressing plans to meet with leaders of the Smithsonian Pride Alliance, one of the two groups that detailed their concerns to him following December’s hearing.

Bunch told the Pride Alliance in January that with his response to Bice’s question, his intention was to “immediately stress that the Smithsonian does not expose children to inappropriate content.”

“A hearing setting does not give you ample time to expand,ā€ he said, adding that with more time he would have spoken “more broadly about the merits and goals of our programming and content development and how we equip parents to make choices about what content their children experience.ā€

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Survey finds support for Biden among LGBTQ adults persists despite misgivings

Data for Progress previewed the results exclusively with the Blade

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Former President Donald Trump and President Joe Biden (Washington Blade photo by Michael Key)

A new survey by Data for Progress found LGBTQ adults overwhelmingly favor President Joe Biden and Democrats over his 2024 rival former President Donald Trump and Republicans, but responses to other questions may signal potential headwinds for Biden’s reelection campaign.

The organization shared the findings of its poll, which included 873 respondents from across the country including an oversample of transgender adults, exclusively with the Washington Blade on Thursday.

Despite the clear margin of support for the president, with only 22 percent of respondents reporting that they have a very favorable or somewhat favorable opinion of Trump, answers were more mixed when it came to assessments of Biden’s performance over the past four years and his party’s record of protecting queer and trans Americans.

Forty-five percent of respondents said the Biden-Harris administration has performed better than they expected, while 47 percent said the administration’s record has been worse than they anticipated. A greater margin of trans adults in the survey ā€” 52 vs. 37 percent ā€” said their expectations were not met.

Seventy precent of all LGBTQ respondents and 81 percent of those who identify as trans said the Democratic Party should be doing more for queer and trans folks, while just 24 percent of all survey participants and 17 percent of trans participants agreed the party is already doing enough.

With respect to the issues respondents care about the most when deciding between the candidates on their ballots, LGBTQ issues were second only to the economy, eclipsing other considerations like abortion and threats to democracy.

These answers may reflect heightened fear and anxiety among LGBTQ adults as a consequence of the dramatic uptick over the past few years in rhetorical, legislative, and violent bias-motivated attacks against the community, especially targeting queer and trans folks.

The survey found that while LGBTQ adults are highly motivated to vote in November, there are signs of ennui. For example, enthusiasm was substantially lower among those aged 18 to 24 and 25 to 39 compared with adults 40 and older. And a plurality of younger LGBTQ respondents said they believe that neither of the country’s two major political parties care about them.

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