The Education Department has two options: Push out a rule that’s likely to put campaigning Democrats on the defensive, or risk giving a Republican-controlled Congress more time to reverse the rule — and prevent anything “substantially similar.”

“The last thing the Democrats want is to go into the midterms arguing about Lia Thomas,” said Jennifer Braceras, director of the conservative-leaning Independent Women’s Law Center, referring to the transgender University of Pennsylvania swimmer who conservatives frequently cite in their push for restrictions on transgender athletes. “If the administration releases its sports rule before November, then they have to campaign on it.”

The Biden administration’s proposed Title IX rule seeks to extend the decades-old education law barring sex-based discrimination to also codify protections centered on sexual orientation and gender identity.

The proposal drew more than 240,000 comments since it was unveiled in June, and the Biden administration promised a separate rule for sports eligibility. And while transgender women have been allowed to compete in women’s categories in 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 to compete on women’s teams.

But a separate sports rule is crucial, especially as more states are expected to pursue new restrictions when legislators reconvene next year, said Shiwali Patel, senior counsel at the National Women’s Law Center, which has been pressing the White House to speed up the regulatory process.

It needs to be clear “the federal government supports trans students and will hold state’s school districts accountable for having policies and laws that exclude students from playing sports based on their gender identity,” she said.

The Education Department did not respond to a request for comment about when a sports rule could be expected or whether it is delaying the rule until after the midterm elections.

How conservatives are campaigning on the issue

The Republican Governors Association took the issue to the airwaves in Kansas, honing in on Kelly’s vetoes of two bills by the GOP-controlled legislature aimed at barring transgender athletes from playing on women and girls’ sports teams.

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 competed against Thomas, says in an ad aired in Kansas last month.

When Kelly responded with an ad saying, “Of course, men should not play girls’ sports,” RGA and Gaines were ready.

“That’s what Gov. Kelly says now, when she needs your vote,” Gaines said in a rebuttal ad. “Female athletes deserve an equal chance to compete. Instead of doing what’s right, Laura Kelly supported the transgender agenda, and girls like me are paying the price.”

Gaines is becoming a key figure in the midterms and has developed a following in conservative circles speaking out against transgender athletes. She spoke at CPAC, where she was photographed with former President Donald Trump. She’s appeared on Fox and Friends with Paul and was in an ad supporting his campaign. Gaines went on the campaign trail with Walker, and several conservative candidates have posted selfies with the swimmer on social media.

And Kelly isn’t alone in taking political hits over transgender issues before the November elections. In Maine, the RGA put out ads against Gov. Janet Mills, a Democrat running for reelection, saying that her “Education Department was teaching kindergartners radical transgender policies.” The criticism targeted a teacher’s LGBTQ lesson plan for kindergartners that was later removed from a state website. Mills said she agreed with her state’s Department of Education’s review that found the lesson to be not age appropriate.

Democratic Gov. Tony Evers of Wisconsin was criticized in an ad over “transgender videos for kindergarteners,” because the state Department of Public Instruction had made LGBTQ learning material available.

In Florida, an ad in support of Republican Sen. Marco Rubio’s reelection took jabs at his challenger Democratic Rep. Val Demmings, saying she “voted to allow transgender youth sports and teach children radical gender identity without parental consent.” The dig referred to Demmings’ vote for the House-passed Equality Act, a bill that would’ve prohibited discrimination based on gender identity and sexual orientation.

Democratic candidates have been responding to the ads by addressing funding for schools, Democratic Governors Association spokesperson David Turner said.

“Republicans are trying to distract from the fact that they’re on the wrong side of how most Americans view public education should be funded, how teachers should be paid — the bread-and-butter issues of education,” he said. “They don’t want to have a conversation about how schools are funded and how teachers are paid because they know that is a losing issue for them.”

The outlook for a sports Title IX rule

Some groups expect a future rule to focus on implementation or guidelines for testosterone suppression before a transgender student can compete on women’s teams. Though conservative advocates say testosterone suppression may not be enough to eliminate athletic advantages.

The department hasn’t given many indications of what it is contemplating with a separate sports rule, said Candice Jackson, who served as acting assistant secretary for civil rights and deputy general counsel under former Education Secretary Betsy DeVos. She also helped draft the DeVos-era Title IX rule on sexual misconduct, and is now a lawyer for Women’s Liberation Front, a group opposing efforts to accept transgender athletes.

But the department, Jackson said, could consider redefining when separating sports teams by sex is necessary or create eligibility standards for K-12 schools and colleges. It could also include a stipulation of whether schools or sports governing bodies are in charge of making the eligibility determination.

Those who are advocating against the sports rule say a separate rule doesn’t matter because the Biden administration’s Title IX rule unveiled over the summer could be sweeping enough to include sports since it doesn’t specifically exclude it.

Additionally, the Congressional Review Act could pose a roadblock for the administration’s Title IX proposal that looks to protect students based on their gender identity, let alone a separate sports rule. The CRA gives lawmakers 60 legislative days to overturn major rules once they’re issued by federal agencies. While it can still be subject to a presidential veto, CRA resolutions only require a simple majority, potentially forcing difficult votes for Democrats.

But dozens of women’s rights and gender justice advocates are still urging the White House to unveil its rule to ensure “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 that restrict transgender students from playing on sports teams that match their gender identity are violating Title IX.

The Biden administration is aware that the issue is “evolving in real time,” Education Secretary Miguel Cardona said in June, when he promised to soon release a proposed rule.

“Trans Rights are Human Rights,” Cardona tweeted last week. “@USEDGov has and will continue to stand with and protect all students from policies that prohibit them from affirming their gender identity.”

Groups advocating for transgender athletes, including the National Women’s Law Center, say it’s crucial to unveil a rule immediately because of the proliferation of state-level restrictions. They’re especially critical of any policy that includes sex testing to play on sports teams, because “they’re humiliating and they’re unscientific, and they also create 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, moreover, reject the bigoted premise that they do not deserve the same civil rights protections as their peers.”