The Education Department has two options: either pull out a rule that is likely to put campaigning Democrats on the defensive, or risk giving the Republican-controlled Congress more time to reverse the rule and avoid something “substantially similar.”
“The last thing Democrats want is to get into the midterms arguing about Lia Thomas,” said Jennifer Braceras, director of the conservative-leaning Independent Women’s Law Center, referring to the University of Pennsylvania transgender swimmer whom conservatives cite with frequently in his campaign for restrictions on transgender athletes. “If the administration publishes their sports rule before November, then they have to campaign about it.”
The Biden administration’s proposed Title IX rule seeks to extend the decades-old education law that prohibits discrimination based on sex to also codify protections centered on sexual orientation and gender identity.
The proposal has drawn more than 240,000 comments since it was unveiled in June, with the Biden administration promising a separate rule for sports eligibility. And while transgender women have been allowed to compete in the women’s categories at the Olympics since 2003 and in the NCAA since 2010, an NPR/Ipsos poll in June found that nearly two-thirds of Americans oppose allowing transgender women and girls compete in women’s teams. .
But a separate sports rule is crucial, especially as more states are expected to implement new restrictions when lawmakers meet next year, said Shiwali Patel, a senior adviser at the National Women’s Law Center, which has been lobbying the White House. to speed up the regulatory process. .
It should be clear that “the federal government supports trans students and will hold state school districts accountable for having policies and laws that exclude students from playing sports based on their gender identity,” he said.
The Education Department did not respond to a request for comment on when a sports rule might be expected or whether it is delaying the rule until after the midterm elections.
How the Conservatives are campaigning on the issue
The Republican Governors Association took the issue to the airwaves in Kansas, focusing on Kelly’s vetoes of two bills in the GOP-controlled legislature intended to ban transgender athletes from playing on women’s sports teams. and girls.
The RGA put University of Kentucky swimmer Riley Gaines center stage.
“If Laura Kelly can’t protect women, she shouldn’t be governor of Kansas,” Gaines, who has run against Thomas, said in an ad aired in Kansas last month.
When Kelly responded with an ad that read, “Of course men shouldn’t play girls’ sports,” RGA and Gaines were ready.
“That’s what Governor Kelly is saying now, when she needs your vote,” Gaines said in a rebuttal announcement. “Female athletes deserve the same opportunity to compete. Instead of doing the right thing, Laura Kelly supported the transgender agenda and girls like me are paying the price.”
Gaines is becoming a key figure in the midterm elections and has gained a following in conservative circles who speak out against transgender athletes. She spoke at CPAC, where she was photographed with former President Donald Trump. She appeared on Fox and Friends with Paul and was in a commercial supporting his campaign. Gaines has been on the campaign trail with Walker, and several Conservative candidates have posted selfies with the swimmer on social media.
And Kelly isn’t the only one taking political jabs over transgender issues ahead of the November election. In Maine, the RGA ran ads against Gov. Janet Mills, a Democrat running for re-election, saying her “Department of Education was teaching kindergarteners radical transgender politics.” The criticism focused on a teacher’s LGBTQ lesson plan for kindergarten children that was later removed from a state website. Mills said she agreed with the state Department of Education’s review of her that found the lesson inappropriate for age.
Democratic Governor Tony Evers of Wisconsin was criticized in an ad for “transgender videos for kindergarteners,” because the state’s Department of Public Instruction had made LGBTQ learning material available.
In Florida, an ad in support of the Republican senator. blond frame’s reelection attacked his challenger, the Democratic representative. Val Demmings, saying he “voted to allow transgender youth sports and teach children a radical gender identity without parental consent.” The dig concerned Demmings’ vote for the House-passed Equality Act, a bill that would have banned discrimination based on gender identity and sexual orientation.
Democratic candidates have been responding to the ads by addressing school funding, Democratic Governors Association spokesman David Turner said.
“Republicans are trying to distract from the fact that they are on the wrong side of how most Americans see public education should be funded, how teachers should be paid — the basic issues of education,” said. “They don’t want to have a conversation about how schools are financed and how teachers are paid because they know it’s a lost topic for them.”
The Prospects for a Title IX Sports Rule
Some groups hope that a future rule will focus on implementation or guidelines for testosterone suppression before a transgender student can compete on women’s teams. Although conservative advocates say that testosterone suppression may not be enough to eliminate athletic advantages.
The department has given little indication of what it is contemplating with a separate sports rule, said Candice Jackson, who served as acting deputy secretary for civil rights and deputy general counsel under former Education Secretary Betsy DeVos. She also helped write the DeVos-era Title IX rule on sexual misconduct, and is now an attorney for the Women’s Liberation Front, a group that opposes efforts to accept transgender athletes.
But the department, Jackson said, could consider redefining when it’s necessary to separate sports teams by sex or create eligibility standards for K-12 schools and colleges. It could also include a stipulation as to whether schools or athletic governing bodies are in charge of making the eligibility determination.
Those who advocate against The sports rule says a separate rule doesn’t matter because the Biden administration’s Title IX rule unveiled over the summer could be broad enough to include sports as it doesn’t specifically exclude them.
In addition, the Congressional Review Act could be a hindrance for the administration’s Title IX proposal that seeks to protect students based on their gender identity, let alone a separate sports rule. The CRA gives legislators 60 legislative days to repeal important regulations once federal agencies issue them. While it may still be subject to a presidential veto, CRA resolutions only require a simple majority, which could force tough votes for Democrats.
But dozens of women’s rights and gender justice advocates continue to urge the White House to unveil its rule to ensure that “all students, including transgender, non-binary, and intersex students, can participate fully and equally.” in school sports.
They want the Biden administration to clarify in writing that the 18 states with laws or policies restricting transgender students from playing on sports teams that match their gender identity are in violation of Title IX.
The Biden administration is aware that the issue is “evolving in real time,” Education Secretary Miguel Cardona said in June, promising to release a proposed rule soon.
“Trans rights are human rights”, Cardona tweeted last week. “@USEDGov has supported and will continue to protect all students from policies that prohibit them from asserting their gender identity.”
Groups advocating for transgender athletes, including the National Women’s Law Center, say it’s crucial to immediately reveal a rule because of the proliferation of restrictions at the state level. They are especially critical of any policies that include sex testing to play on sports teams, because “they are humiliating and unscientific, and also create a new risk of sexual abuse,” Patel said.
“This is an opportunity to reverse the alarming trend of lawmakers singling out LGBTQI+ students in an effort to score political points,” the groups, led by NWLC, told the White House, “and further reject the bigoted premise that they don’t deserve the same civil rights protections as their peers.”