NCAA Trans Policy, Title IX Suit May Hinder Congress on NIL
The NCAA, college sports’ serial defendant, faces another federal lawsuit as more than a dozen female athletes sued the association, the University of Georgia and other defendants Thursday for alleged violations of Title IX, the Equal Protection Clause and the right to bodily privacy, stemming from the eligibility of transgender athletes.
The complaint, filed in a Georgia federal court, demands that the NCAA pull the eligibility of transgender female athletes competing in women’s events, and redistribute awards, credits and other achievements in which those athletes compete. The plaintiffs hope their case is eventually certified as a class action on behalf of women who are past, current or future NCAA athletes.
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Former University of Kentucky All-American swimmer and current political commentator Riley Gaines is among the athletes who argue the NCAA violates the law by permitting transgender athletes. The NCAA permits transgender athletes on a sport-by-sport basis in alignment with the Olympics and based on determinations by national governing bodies for each sport. The NCAA says it tries to balance “fairness, inclusion and safety for all who compete.”
The lawsuit details the experience of Gaines competing in multiple events against Penn swimmer Lia Thomas, the source of much attention as a transgender athlete. Thomas and Gaines tied for fifth in the 200-yard freestyle event at the 2022 NCAA swimming and diving championships, after which Gaines began to publicly campaign against trans athletes competing in women’s sports.
Since then, her activism has broadened into a full-throated and increasingly political condemnation of transgenderism. In early 2023, Gaines publicly endorsed the Republican presidential nomination of Florida Gov. Ron DeSantis after appearing in a campaign ad for former College Football Hall of Fame inductee Herschel Walker, in his failed 2022 runoff bid for the U.S. Senate seat in Georgia. In addition to testifying on Capitol Hill, Gaines also advocated for Ohio House Bill 68, which would prohibit trans athletes from participating in women’s sports as well as ban doctors from providing gender-affirming treatment.
Core to the legal argument made by Gaines and her co-plaintiffs is that since Title IX guarantees men and women equal opportunities to compete in athletics, allowing transgender female athletes to compete deprives other women athletes. The plaintiffs also claim violations of equal protection of the law, alleging they and other women are being treated unfairly.
The defendants will answer the complaint in the coming weeks and seek its dismissal. Expect the NCAA to argue its transgender eligibility policy reflects international consensus and is consistent with the law. The NCAA will also question the application of Title IX, the applicability for which requires federal funding.
Gaines v. NCAA follows other litigation involving the eligibility of transgender athletes. Soule v. Connecticut Interscholastic Athletic Conference, which has been in court since 2018, has garnered significant attention. It involves a challenge to Connecticut’s state athletic association allowing transgender athletes to compete. The Justice Departments of former President Donald Trump and President Joe Biden offered conflicting advocacy on the topic, with the former concurring in the viewpoints expressed in Gaines v. NCAA and the latter contending Title IX protects the eligibility of transgender athletes.
Meanwhile, according to the Movement Advancement Project, 24 states have adopted bans of transgender students from participating in sports consistent with their gender identity. The U.S. Supreme Court could eventually decide how federal laws ought to be read in the context of transgender athletes, who comprise a tiny percentage of NCAA athletes. Last fall, U.S. Rep. Bobby Scott (D-Va.) said that out of approximately 480,000 athletes playing at NCAA colleges, only 32 were transgender. According to the NCAA, there were 5,886 female D-I swimming and diving athletes participating during the 2021-22 academic year, compared to 3,826 men.
The ascendancy of the debate over trans athlete participation threatens to further reduce what is the already unlikely chance Congress can converge on a college sports reform bill addressing NIL, athlete employee rights, and the antitrust status of the NCAA. That legislative effort, which once carried an air of across-the-aisle comity, has increasingly shown signs of splitting along partisan lines.
Thursday’s lawsuit comes a day after Sen. Ted Cruz (R-TX) hosted an ostensibly bipartisan roundtable on the future of college sports—featuring seven Republican senators and Democrat Joe Manchin—along with former Alabama head football coach Nick Saban, ACC commissioner Jim Phillips and others. The upshot of the forum was that Congress must move quick to rescue the institution of college sports from the relentless tumult caused by state-based NIL laws, the unionization of Dartmouth athletes, and a series of antitrust lawsuits against the NCAA.
Earlier this week, Sen. Tommy Tuberville (R-Ala.), the former college football coach who has positioned himself as a national leader on legislating a federal NIL fix, convened his own roundtable addressing concerns about trans athletes and what he characterized was the Biden administration’s attack on Title IX. “This isn’t a Democrat or Republican problem—it’s an American problem,” Tuberville said, imploring those “on the left to make a common-sense decision to save women’s sports.”
Hours before the lawsuit was filed Thursday, Gaines took to X (formerly Twitter) to foreshadow the “big news.” In an accompanying video, Gaines invoked a familiar refrain of recent years’ college athlete advocacy, saying, “The NCAA cannot continue to run from accountability.”
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