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    Ann Rostow: Biden Offers Trans Sports Policy

    By Ann Rostow–

    Biden Offers Trans Sports Policy

    The big news this week is the Department of Education’s announcement of transgender sports policies for public schools, a 116-page document that I decided not to read. Happily, there is a summary, as well as much commentary for our analysis, because, um, 116 pages? Really? 

    I hate it when people on both sides condemn something and observers note that whatever it is must be a good compromise because it pleases no one. “We must be doing something right!” No, not necessarily. You may have either screwed up every aspect of whatever it was, or done a half-baked job on it, or just muddled around. This time, the reactions reflect the fact that transgender sports is a difficult issue, and one with some complexity.

    Unlike a case of “simple” transgender discrimination in the workplace, which I assume readers agree is always wrong, there is a reason for barring transwomen who have yet to finish a transition from playing on women’s teams. That’s why the NCAA required a year of hormone therapy—maybe two, I forget—before letting transwomen compete against cisgender athletes. That has been bumped up by swimming authorities, but we should agree that an adult transwoman with operational male hormones can’t join the college track team. 

    There is also a powerful case to be made that preteen trans and cis kids should be able to play together in early grades because school sports are for health, fun, camaraderie, and whatever life lessons are passed along on the kickball field. They are not designed to teach that some kids don’t belong, or that it’s crucial to come in first at the sixth-grade relay race.     

    The good part of Biden’s policy is that it makes clear that Title IX’s ban on sex discrimination in public education includes transgender athletes. The blanket bans on participation that are coming out of red state legislatures are illegal, period. Schools are allowed to create their own limitations on girl’s and women’s sports, provided they avoid trans bias, all-or-nothing rules, and unreasonable restrictions on grade school kids. 

    And there’s the rub. If you have the view that anything goes, those loopholes are too large. Looking at the big picture, however, a policy that forbids these strict bans is to be cheered. In the middle comes concern by all GLBT allies that there’s still too much room for discrimination and abuse. Further, the policy seems to allow for intrusive tests to determine gender, although I’m not clear on this element. 

    All in all, I think Melanie Willingham-Jaggers, the executive director of GLSEN, the Gay, Lesbian and Straight Education Network, put it as well as anyone: “We commend the U.S. Department of Education for making clear that categorical trans school sports bans—like those enacted in many states—violate Title IX,” she told The Advocate. “The proposed rule also suggests that any eligibility criteria that limits participation consistent with gender identity cannot be based on junk science or bigotry and must serve a legitimate purpose. This should mean that no transgender, nonbinary, or intersex student is denied the opportunity to play school sports—but amid intensifying anti-transgender political attacks, we cannot count on good actors. We will continue to work with the Department to ensure that a final rule supports the full inclusion of trans, nonbinary, and intersex students in all aspects of education, including sports.”

    The Department of Education will conduct a 30-day period of public comment before formalizing these guidelines.

    Past the Tipping Point

    I was reading an article in The New York Times about how the religious right and conservative politicians deliberately began to target the transgender community once they lost the fight against same-sex couples and gay rights. In doing so, the various trans issues have tumbled and combined into what’s now a full-scale assault on every aspect of gender identity, starting with bathrooms and moving to sports, health care, drag shows, and school curricula. When North Carolina’s attempt to ban transgender men and women’s use of public lavatories triggered a massive national protest including corporations, sports teams, and the NCAA, we witnessed even more draconian pieces of legislation signed into law without any sign of organized pushback from American institutions. 

    What struck me was not the article itself, but the comments, which were full of self-identified liberals and Democrats announcing that the left has gone too far. Stuff like: “I hate the Republicans and all they stand for, but I agree with them in this area,” to make up a typical quote. The other common complaint from the left was that “we” (I suppose our community and our allies) were distracting everyone from more important issues as if we ourselves had deliberately arranged to put trans rights in the political crosshairs. 

    Beyond that, there were a lot of references to sportswomen by Times readers who seemed to make no distinction between a debate over athletics and a law against health care or a ban on drag shows.

    Lastly, I have the feeling that our community itself is fractured, a little. It’s not like the days when gay organizations and activists frowned on fighting for trans rights and adding the T to our acronym, but there are echoes. You may remember during our useless efforts to pass the nonsensical Employment Nondiscrimination Act that many objected to making that proposal trans-inclusive, as if it had even the most remote chance of passage in any form. What people failed to recognize then was that our core battle was, and is, a fight to redefine gender roles. Gender is at the heart of being gay or bisexual. We defy long-standing social norms and roles through our very being and the transgender community is intrinsically part of our larger collective. We cannot lose sight of that fact.

    Society itself has shifted many of its views on gender over the last fifty years. Women work. Men care for children. Children are born out of wedlock. Couples live together without getting married. And, of course, in the last two decades gays and lesbians have become far more accepted, along with our differences in gender styles and attractions. Society has digested all of this, but I think part of what we’re seeing is a straightforward backlash, a wave of intolerance and “enough is enough” that is washing over far more people than you’d think and that is driving the lawmakers throughout red America. 

    Lastly, the fact that surveys show Gen Z is far more gender fluid than earlier cohorts has given this conflict an element of real fear. I don’t think anyone was ever really afraid of people marrying their pets, or whatever slippery slopes were suggested during our fight for marriage. But you can be sure people are afraid of scores of kids changing gender, or having surgery in their pre-teens, or ladies’ rooms filled with men, or transwomen outracing the ciswomen at the Olympic trials, or confused toddlers asking about gender identity after a day at preschool. All of this is indeed somewhat possible, but no one will stop to ask how many people are involved (far less than one percent of Americans) or how many people are harmed by transgender Americans trying to live their lives (none, not even the toddlers who have been asking awkward questions since time began). 

    The only real harm is to our sense that nothing will ever change and the world will always remain exactly as it is. 

    And There’s More

    I could write a short book about transgender news this week, but let me summarize some additional developments. The High Court refused to allow West Virginia to discriminate against trans athletes while the state defends its anti-trans law in court, which is very good news. After West Virginia passed a sports ban in 2021, a 12-year-old trans girl sued and a lower court temporarily put a hold on the new law. Subsequently, that court released its hold, but the U.S. Court of Appeals for the Fourth Circuit slapped it back in place. The conservatives on the other side then asked the justices to overturn the Fourth Circuit but seven justices refused. Our buddies Alito and Thomas voted for West Virginia. 

    Meanwhile, cases in two states that have undermined transgender health treatment will be combined before the full U.S. Court of Appeals for the Fourth Circuit, a court where Democratic appointees outnumber Republicans by nine to six. We’ll watch that one. 

    Speaking of Democratic versus Republican judicial nominees, here we have a panel of Seventh Circuit judges, all Republican appointees, who voted 2–1 against an anti-trans high school music teacher from Brownsburg, Indiana. The teacher, John Kluge, asked to be given a religious-based pass on a school rule that said teachers must use preferred names and pronouns. For a time, he was allowed to use the last names of his students, two of whom were trans. But Kluge kept forgetting to follow his own rule, and other students complained about his hostile attitude. One of his trans students dropped out of his class, and to make a long story short, the guy was canned. 

    Kluge sued under Title VII of the Civil Rights Act of 1964, which forbids religious discrimination in the workplace, among other things. According to Art Leonard of the New York School of Law, one of the judges thought the case should have had some fact-finding at trial, although he agreed with the majority that Kluge could not claim that his discharge was an act of retaliation. Leonard thinks it likely that Kruge’s lawyers at the Alliance Defending Freedom will appeal to the full circuit or the High Court.

    Show Me the Madness

    I’m not sure I have the stamina to tell you about the insanity out of Missouri, where the Attorney General has issued an “emergency rule” banning health care and transition services for all transgender adults in the state. I had no idea this was possible, and I think the federal courts will soon tell us it’s not. My wife’s side of the family, as I may have mentioned, come from Kansas and “hate” Missouri, to the point where my stepson used to drive over the border to buy things in Kansas and deny money to the Missouri sales tax collectors. Missouri, after all, attacked Kansas in the 1850s, setting fire to Lawrence in defense of slavery, and my family hasn’t forgotten it! I used to joke about this, but I’m starting to think the cause is a legitimate one.

    Now, I see that, in fact, I will be devoting this entire column to transgender issues, because I haven’t even brought up the Bud Light story, nor have I touched on the Texas state representative, Bryan Slaton, who has championed a ban on drag shows that “sexualize children.” 

    Slaton is now charged with serving alcohol to a minor at his home, the minor being an underaged intern who also had sex with the married lawmaker on a weekday night, we hear. Check out a photo of Slaton, and you’ll see the stereotypical unattractive fat cat Republican honcho, who reportedly told the intern to keep quiet about the tryst. It is not even the hypocrisy that annoys me. It’s just gross. Honey, I don’t know anything about you, but you can do better than that.

    And while I was reading about Slaton on The Daily Beast, I couldn’t help noticing a headline right under his story that read: “DeSantis Ally Died by Suicide After Being Accused of Sexual Misconduct with Minor.” Somehow, I never saw this news, which took place in December and involved a man, Kent Stermon, who was described as a man with “vast influence” over the Florida Republican Party. Who knew?

    Okay, fine. You read about it at the time, did you? Bravo. For the benefit of the rest of us, Stermon was accused of trying to trade Taylor Swift tickets for photos of this teenaged girl’s breasts. He then offered her dad a tidy sum to keep the incident under wraps, but the dad declined and went to the police. 

    I have no time or space left for Bud Light, which earned a really bizarre reaction after trans Instagram influencer Dylan Mulvaney posted a little promo. Various conservative celebrities pledged to boycott the product, but since I have no time or space, I can’t elaborate. Also, I don’t care, I’ve never heard of the boycott people, and I’m no longer a big beer drinker, having graduated to dry white wine and gin drinks. 

    That said, I will make it a point to order a Bud Light the next time I’m out, on principle.

    GLBT Fortnight in Review
    Published on April 20, 2023