limit or deny a student’s eligibility, such criteria must, for each sport, level of competition, and grade or education level: be substantially related to the achievement of an important educational objective, and minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied. [emphasis added]
The Proposed Rule is Something Only Congress, not an Unaccountable Federal Agency, Should Enact, if DesiredThe Proposed Rule lacks an adequate legal foundation because DOE based the change on a U.S. Supreme Court employment case called, 140 S. Ct. 1731 , which said that firing someone solely because they were transgender violates Title VII , but also said it cannot be used to change any other law:
[I]t makes perfect sense that it should be as illegal to fire someone for being transgender, who is otherwise perfectly performing the duties of their job, as it is to fire someone for being a woman. Neither status, as a transgender person or a woman, has any impact on one’s job performance in most jobs, and so firing such a person for that reason alone must be, or at least most likely is, the result of naked prejudice or bias. This the law prohibits, and arguably rightly so.
[T]he Proposed Rule defies simple fairness because the physical differences between males and females, especially those that contribute to athletic success, are stark and all in the male’s favor, as every athletic metric shows.