Transgender athletes are getting an ally in the White House next week as they seek to participate as their identified gender in high school and college sports — although state legislatures, Congress and the courts are all expected to have their say this year, too.

Attorneys on both sides say they expect President-elect Joe Biden’s Department of Education will switch sides in two key legal battles — one in Connecticut, the other in Idaho — that could go a long way in determining whether transgender athletes are treated by the sex on their birth certificates or by how they identify.

Debate is also expected in statehouses. Last year, bills to restrict transgender athletes' participation to their gender assigned at birth were brought up in 17 states, although only one, Idaho's, became law.

It may ultimately fall to Congress to clarify once and for all whether Title IX, the civil rights law that guarantees equal opportunities for women and girls in education, protects or bars the participation of transgender females in women's sports, said Elizabeth Sharrow, an associate professor of public policy at the University of Massachusetts.
 
“I think if they do that, lawmakers at the state level can propose laws, but it doesn’t mean those proposals are going to be taken seriously in the legislative bodies they serve in or that if the state passes those laws anyway that they would necessarily be considered legitimate,” she said. “The courts will sort that out.”

During his campaign, Biden committed to restoring transgender students’ access to sports, bathrooms and locker rooms in accordance with their gender identity.

 “States that like Idaho attempt to bar trans girls from girls sports, regardless of age of transition, medical intervention or anything else, with a new federal administration, will now be risking lawsuits by the federal government, Justice Department intervention and the loss of federal funding,” said Chase Strangio, the American Civil Liberties Union’s deputy director for transgender justice.

In Idaho, a law signed in March became the nation's first to prohibit transgender students who identify as female from playing on female teams sponsored by public schools, colleges and universities. The law was supported by President Donald Trump’s administration but blocked from implementation by a federal judge while a legal challenge by ACLU proceeds.

 
“Allowing males to enter our sports isn’t fair," Madison Kenyon, a cross-country runner at Idaho State, said in a statement Friday. "It changes everything because it eliminates the connection between an athlete’s effort and her success. Idaho’s law helps make sure that, when women like me work hard, that hard work pays off, and we have a shot at winning.”

In Connecticut, the Trump administration intervened in support of a lawsuit filed by several non-transgender girls in Connecticut who were seeking to block a state policy that allows transgender athletes to compete in line with their identity. The plaintiffs argued transgender female runners had an unfair physical advantage.

But the two transgender runners at the center of that case said in court filings that being able to run against girls was central to their well-being.

“Running has been so important for my identity, my growth as a person, and my ability to survive in a world that discriminates against me,” Andraya Yearwood wrote to the court. “I am thankful that I live in Connecticut where I can be treated as a girl in all aspects of life and not face discrimination at school.”

Neither of the two closely watched cases is expected to be decided for months. A federal judge has scheduled a hearing for Feb. 26 on a request to dismiss the Connecticut lawsuit.
 
The ACLU and the Christian nonprofit Alliance Defending Freedom, which is fighting in Connecticut and Idaho to bar the participation of trans athletes, expect Biden’s administration to declare that Title IX also protects transgender girls from discrimination.

Opponents say Title IX protects cisgender girls and allowing trans girls to participate against them is a violation of the statute.

“I think that is extremely concerning for the future of women’s sports and would reverse nearly 50 years of gains for women under Title IX,” said Christiana Holcomb, an attorney for the Alliance Defending Freedom.

In states that have adopted policies on transgender participation high school sports, approaches have varied.

Currently, 14 states and the District of Columbia have policies similar to Connecticut’s, according to Transathlete.com. Fourteen others allow transgender participation with certain conditions, such as hormone treatments or other proof the athlete is transitioning, according to the organization.

Opponents of bans are encouraged by Biden's victory and a 2020 Supreme Court decision that found that transgender people are protected from discrimination in employment.

“It’s possible that the Connecticut case could evaporate under a new administration that doesn’t want to press it,” said Erin Buzuvis, a professor at the Western New England School of Law who specializes in gender and discrimination in education and athletics.

“The Idaho situation is different because it is a state law that is being challenged under the equal protection doctrine," Buzuvis said. "That could set some sort of national standard about what kind of policies states are allowed to have or prohibited to have. But that doesn’t necessarily mean that the case would say, ‘Here is the one policy that all states must have.’”

President-elect Joe Biden announced Tuesday that he will nominate Rachel Levine, Pennsylvania’s top health official, as his assistant secretary of health. Levine, a pediatrician, would become the first openly transgender federal official to be confirmed by the U.S. Senate.

“Dr. Rachel Levine will bring the steady leadership and essential expertise we need to get people through this pandemic — no matter their zip code, race, religion, sexual orientation, gender identity, or disability — and meet the public health needs of our country in this critical moment and beyond,” Biden said in a statement. “She is a historic and deeply qualified choice to help lead our administration’s health efforts.”

As Pennsylvania’s secretary of health, Levine has risen to national prominence for leading the state’s public health response to the coronavirus pandemic, despite repeated and ugly attacks on her gender identity.

Biden’s transition team noted that Levine — appointed by Gov. Tom Wolf (D) in 2017 as acting health secretary — was confirmed three times by the Republican-controlled state Senate to serve as secretary of health and the state’s physician general. At the time, she was one of only a handful of transgender officials serving in elected or appointed offices nationwide.

If confirmed as assistant secretary of health, Levine would be the highest-ranking transgender official in the U.S. government.

“President-elect Biden said throughout his campaign that his administration would represent America," said Mara Keisling, the executive director of the National Center for Transgender Equality. “Today, he made clear that transgender people are an important part of our country.”

Serving under Xavier Becerra, Biden’s nominee to head the U.S. Department of Health and Human Services, Levine would oversee key health offices and programs across the department, 10 regional health offices nationwide, the Office of the Surgeon General and the U.S. Public Health Service Commissioned Corps.

Her nomination comes after an election season in which a record number of LGBTQ candidates ran for office but after four years of a presidential administration that repeatedly erased protections for transgender people — in health care, federal employment, federal prisons, homeless shelters and other housing services receiving federal funding.

Biden has signaled a significant shift from the Trump administration when it comes to inclusion of the transgender community. He mentioned transgender people in his presidential acceptance speech, and released a lengthy platform outlining his plans to prioritize LGBTQ rights. Biden also named to his transition team Shawn Skelly, a former special assistant to the undersecretary of defense for acquisition, technology and logistics, and coordinator of the Defense Department Warfighter Senior Integration Group. Skelly was the first transgender veteran to be appointed by a U.S. president.

Over the past two months, advocates have urged Biden to nominate LGBTQ leaders to key positions in the administration. Biden named Pete Buttigieg to lead the Transportation Department, making him the first openly LGBTQ person nominated to a permanent Cabinet position. As the highest-ranking appointed transgender official in the United States, Levine was often near the top of advocates’ lists of suggested names for top roles.

“She’s just so highly qualified, regardless of her gender identity,” said Raffi Freedman-Gurspan, who was the first openly transgender appointee in the Obama White House. Freedman-Gurspan happened to be in Pennsylvania with friends on Tuesday morning when the news of Levine’s nomination broke.

“We all screamed,” she said. “It is well deserved and I think it sends a message to the trans community about how valued we are. We have a seat at the table. There’s no doubt about that.”

Former Secretary of Education Betsy DeVos leaves behind a legacy of attacks on LGBTQ equality.

Betsy DeVos, who served as secretary of education for nearly the entirety of the Trump administration, submitted her resignation on Thursday, Jan. 7, citing as her reason the violent attack on the U.S. Capitol by supporters of Donald Trump and his rhetoric helping to incite it.

The Department of Education added to her legacy of attacks on transgender equality in U.S. schools on Friday, the day her resignation took effect, releasing an internal memo that said the definition of sex-based discrimination in Title IX, which bars such discrimination in educational institutions that receive federal funding, does not apply to transgender people.

The policy was reflective of much of the education department's transphobic agenda during DeVos' time as education secretary.

Reed Rubinstein, the Department of Education's principal deputy general counsel, sent a memo to the department's acting assistant secretary for civil rights, Kimberley Richey, saying that "the Department's longstanding construction of the term 'sex' in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of 'sex' at the time of Title IX’s enactment. ... Consequently, based on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term 'sex' in Title IX to mean biological sex, male or female. Congress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so."

Although two federal appeals courts disagreed with the department's contention that Title IX doesn't protect transgender students, Rubinstein said it remains "unpersuaded" by their rulings.

The memo shows that in the final weeks of the Trump administration, the agency continues to reject the Supreme Court's ruling in Bostock v. Clayton County that LGBTQ people are protected under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination. Although Bostock concerned workers, experts on its protections say that the decision could have broader ramifications, including for education policy.

Title IX's language is "closely modeled" on Title VII's language and "courts regularly look to case law around Title VII for how to define the scope of sex discrimination" under Title IX, said Sharita Gruberg, senior director of the LGBTQ Research and Communications Project at the Center for American Progress.

In August, the Education Department's Office for Civil Rights published two letters signed by Richey that acknowledged the Bostock ruling would affect how the department responded to complaints. The department said that it would investigate a complaint about discrimination based on sexual orientation, but that schools that have policies that are inclusive of transgender students are breaking the law.

Last year, the agency also welcomed an anti-LGBTQ activist, Sarah Perry, to its diversity and inclusion council and told three Connecticut school districts that they wouldn't receive federal grants if they decided to keep their sports inclusive of trans athletes.

In 2017, the department, along with the Department of Justice, rescinded Obama-era guidance on protections for transgender students in schools.

In 2018, the agency told BuzzFeed News that it wouldn't investigate complaints involving transgender students who were not allowed to use the bathroom or locker room corresponding to their gender. The department said, "Title IX prohibits discrimination on the basis of sex, not gender identity." Despite federal court rulings that advance transgender equality, the department has refused to change its position.

The Department of Education largely opposed the protection of LGBTQ students' rights in general, according to a 2019 report released by the Center for American Progress. The report stated that complaints of discrimination related to sexual orientation and gender identification were "nine times less likely to result in corrective action than they were under the Obama administration. Only 2.4 percent of LGBTQ-related complaints resulted in an agreement with the school or some other action to correct for the alleged discrimination against the student—compared with 22.4 percent under the previous administration."

DeVos has acknowledged that she knows how her department's policies can affect transgender youth. During a House Education Committee hearing in 2019, Rep. Suzanne Bonamici (D-OR), asked DeVos, "Did you know, when you rolled back the guidance, that the stress of harassment and discrimination can lead to lower attendance and grades as well as depression for transgender students?"

She said, "I do know that" and added, "But I will say again that [the Office of Civil Rights] is committed to ensuring all students have access to their education free from discrimination."

When Bonamici asked her if she knew about the high rates of attempted suicide among transgender young people, she answered, "I am aware of that data."

But DeVos' awareness of the harm done to transgender students has not led her to change her department's attacks on their rights.

The memo, which the administration of Joe Biden will be able to withdraw and replace once Biden takes office, is the latest in a series of anti-LGBTQ policies advanced by the Trump administration at the last minute.

In December, the Justice Department moved to finalize a rule allowing the department essentially to ease regulations concerning less-blatant kinds of discrimination.

On Thursday, the Department of Health and Human Services finalized a regulation that removed protections against discrimination by organizations that receive federal grants.

In its final weeks, the administration has reversed Obama-era measures that prohibit discrimination against some LGBTQ workers and against discrimination in social services receiving federal funding. It also instituted new rules that make it harder for people to receive asylum in the United States.

Virginia’s housing crisis is spinning out of control. And thanks to discrimination, it’s affecting members of the LGBTQ community, especially transgender people, at a higher rate than others. And to make a bad situation worse, shelters are more likely to discriminate against trans people.

The Richmond City Council is trying to put a stop to that. 

On Jan. 7, the Education and Human Services Committee pushed along a resolution that would add protections for trans Virginians at a time where more people are facing housing insecurity.  During a virtual meeting, the committee recommended that the City Council approve the bill by their next meeting.

“This resolution explicitly states the city’s support of the Virginia Values Act,” said Maggie Anderson, Richmond Mayor Levar Stoney’s LGBTQ liaison.

Resolution 2020-R072 would put in place stronger protections for trans people staying in the city’s shelters. This resolution is a direct response to the letter that Stoney’s office received from many LGBTQ organizations in the area. 

In Oct., 16 organizations, including Equality Virginia and Diversity Richmond, wrote a letter demanding that officials pay attention the discrimination happening in Richmond’s shelters. Discrimination that had gotten so bad that, according to the letter, transgender people were sleeping in their cars or other places not fit for human habitation out of fear.

“This historic lack of trans-affirming service provision is deeply disturbing and requires the Richmond City Council and Mayor’s Office to hold shelters, and the broader Continuum of Care for Homeless Services, accountable for their actions,” said the letter.

Discrimination Leads to Housing Insecurity

Trans people, especially if they’re Black and brown, are more likely to face both housing and job discrimination, making them more susceptible to housing insecurity. And of those facing housing insecurity, they’re more likely to not stay in a shelter. Because of this discrimination, they’re more likely to stay in places not fit for someone to sleep like a park, abandoned building or sidewalk.

“Homelessness is a critical issue for transgender people,” said Jennifer Gallienne with Virginia League for Planned Parenthood. “One in five transgender individuals have experienced homelessness at some point in their lives.”

According to the National Alliance to End Homelessness, the number of adult transgender individuals experiencing homelessness increased 88% since 2016. And, the number experiencing unsheltered homelessness is even higher, increasing 113% during the same period. Currently, the amount of unsheltered trans people is 63%. This is 14% higher than their cisgendered counterparts.

And not having access to a shelter leaves them vulnerable to a multitude of risks. According to the NAEH, a transgender person’s risk of chronic illness jumps from 3% to 38% if they’re unsheltered. And their risk of mental illness is even higher, increasing from 16% to 50%.

“There’s strong evidence that characterizes housing’s relationship to health,” said Gallienne. “Housing stability, quality, safety and affordability all affect health outcomes.” However, in order for transpeople to stay in these shelters, they have to feel safe. And right now, these shelters are far from it.

Transgender People Face Discrimination

During the meeting, Bill Harrison, executive director of Diversity Richmond, recounted a story of an unsheltered trans woman he’d met through their program. She was about 60 years old and was living on the streets out of sheer desperation for several months. Her family had kicked her out of their home.

After reaching out to her, Harrison said she’d became very emotional, asking them to not make her stay in a shelter.

“She’d tried to use the shelters twice,” said Harrison. “But both times she was told she’d have to sleep in the quarters with the men. And both those times she was told to stay in the men’s quarter, she slept on the street.”

Eventually, Harrison ended up checking her into a hotel room.

Unfortunately, this practice is not uncommon. Ted Lewis, the Executive Director of the organization Side by Side, works with LGBTQ youth between the ages 18-25. And the vast majority of the people they see are either trans or non-binary, as well as a racial minority.

“Transgender and non-binary youth face unique challenges accessing care for several reasons,” said Lewis. “Including that they’re often dead named or misgendered by shelter staff. They fear that their gender will not be affirmed, especially in gender segregated shelters. And non-binary youth are often completely left out of gender segregated options.”

Lewis also explained that often trans and non-binary youth also worry about violence against them. Not only from others seeking shelter, but from the shelter’s staff. And data shows that trans and nonbinary people face violence at an incredibly high rate. Unfortunately most of this violence is undocumented.

Adding New Trans Affirming Protections

Gov. Northam signed the Virginia Values Act in April 2020, having it go into effect in July the same year. The Act includes gender and sexuality to the list of protected identities under the Virginia Human Rights Act. Advocates hope that this resolution will add an extra oomph behind the protections guaranteed in the Values Act.

“This resolution is an important step forward in implementing the Virginia Values Act and providing shelters with the guidance that they’re eager for,” said Vee Lamneck, the executive director of Equality Virginia. “It’s especially important that institutions funded by taxpayer money serve our most vulnerable communities competently and equitably.”

If the council passes the bill, shelters in Richmond will have to appropriately train their staff to treat trans people with dignity and respect. This includes using their name and their pronouns correctly and consistently, as well as conflict resolution training. Shelters will also have to create a non-discrimination policy that addresses sexual orientation and gender identity.

“There needs to be adequate training for staff at the shelters,” said Harrison. “The folks I’ve talked to at the shelters want to do the right thing. But they need the training.”

If a shelter fails to complete these steps, it would be a direct violation of the Virginia Values Act. Violating this act carries a pretty hefty price tag. You could end up paying a $50,000 civil penalty as a first time offender. Repeat offenders have to pay $100,000 penalty for each violation.

 What Comes Next? 

The committee will hear more about this bill on Jan. 11. The city council website will be streaming the meeting live at 2 p.m. next Monday. But, in the meantime, if you or someone you know is facing housing insecurity, reach out to the Transgender Assistance Program of Virginia. They offer resources that cater specifically to trans people facing homelessness.

A funeral service was held today for Courtney “Eshay” Key, a transgender woman who was shot and killed in East Chatham on Christmas Day.

Family and friends gathered at a church in south suburban Dolton for a memorial honoring Key’s life.

Around 8:35 pm. Christmas Day night, police found Key’s body on the south side of 82nd Street near Drexel Avenue. At first, Key was believed to be the victim of a hit-and-run crash. But police later found she had suffered gunshot wounds. She was pronounced dead at the scene.

 

Police listed her as a male John Doe, but her family has said she was misgendered, and believe she was the victim of a hate crime.

“I believe Eshay was targeted,” lifelong friend Beverly Ross said earlier this week. “We need to get to the bottom of this because Black trans lives matter. We are not going anywhere.”

Key, 25, was described by family and friends as the life of the party – hilarious and determined.

“She wanted to be something,” Ross said. “She wanted to beat the odds.”

Family and friends also have a problem with how Key has been described elsewhere.

“We are human. We are real,” Ross said. “We’re tired of Chicago police misgendering trans people; gender non-conforming people.”

A trans woman, Key has been identified as both a man and a John Doe.

“They’re dehumanizing our character,” Ross said.

We asked Chicago Police earlier this week about that and we were told, again, the victim is listed as a male. We were also told Area Two detectives are still investigating the homicide. Police have not yet made any arrests.

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