By Stephanie Barnes
In March 2022, during the second day of the Women’s National Collegiate Athletic Association (NCAA) Swimming & Diving Championships held at Georgia Tech University, Kentucky’s All-American Riley Gaines tied with the University of Pennsylvania’s transgender athlete Lia Thomas in the 200-yard freestyle event (AP News, 2024). Earlier in the competition, Thomas won the 500-yard freestyle, finishing ahead of second-place finisher Emma Weyant, a 2020 Olympian from Florida, by nearly two seconds (SwimSwam, 2025). On the third day of the championships, Thomas placed eighth in the 100-yard freestyle. Interestingly, Thomas swam considerably slower than her preliminary times in the finals of the 100 and 200-freestyle events (Sutherland, 2022).
Thomas, an accomplished swimmer on the University of Pennsylvania men’s swimming team, last competed for Penn in 2019-2020, finishing second in the 2019 Ivy League Championships, but did not qualify for the NCAA Championships (University of Pennsylvania Athletics, 2023). After completing testosterone suppression therapy (Thomas did not undergo any gender transition surgery), Thomas was allowed to compete in the women’s category for the 2021-2022 season (Gaines v. NCAA, 2024a).
On March 14, 2024, Gaines and several other NCAA female athletes filed a lawsuit against the NCAA for discrimination against women under Title IX, the Equal Protection Clause, and for violating their right to bodily privacy (Schlam, Stone & Dolan, 2024). The suit, Gaines v. National Collegiate Athletics Association (2024), does not name Thomas as a defendant; however, the complaint centers on the 2022 NCAA championships. According to the plaintiff;,jjmnjlhijlp;, the complaint warrants legal action under Title IX because the NCAA receives federal financial assistance, thus conceding control over certain aspects of college athletics. In its state actor theory against the NCAA under 42 U.S.C. § 1983, the complaint alleges that a non-state actor can be liable under Section 1983 “if: (1) the non-state actor collaborates with or participates in a constitutional violation for which a state actor may also be held responsible; (2) the state actor delegates authority to the private actor; or (3) “where the state provides a mantle of authority that enhance[s] the power of the private actor” (Schlam, Stone & Dolan, 2024).
The key legal argument in Gaines is that allowing transgender female athletes to compete in women’s athletics violates Title IX by depriving women of equal competitive opportunities. (Schlam, Stone & Dolan, 2024). Ratified in 1868 and part of the 14th Amendment, the Equal Protection Clause requires that government bodies treat people equally under the law (Justia, 2024). The NCAA’s permissible level of testosterone is higher than the highest level of testosterone a female can produce without the aid of anabolic steroids (Schlam, Stone & Dolan, 2024). If a female athlete artificially raised her testosterone levels to that degree, she would be deemed ineligible, hence making the claim of competition equality difficult to comprehend. Furthermore, “the NCAA does not have a monitoring and enforcement program for its testosterone suppression requirement” (Gaines v. NCAA, 2024a, p. 80). In other words, the NCAA does not monitor, observe, or keep track of men who are required to participate in testosterone suppression therapy to compete in women’s sports.
Although the Constitution does not explicitly protect the right to privacy, the Supreme Court has repeatedly interpreted it to do so (Griswold v. Connecticut, 1965; Loving v. Virginia, 1967). The female athletes’ right to bodily privacy, as stated in Gaines, was violated by allowing Thomas, a biological male with male genitalia, to share the women’s locker room at the NCAA Championships (Schlam, Stone & Dolan, 2024). Due to the over 300 female swimmers at the event (only female swimmers attended), male and female locker rooms were reserved for women (Gaines v. NCAA, 2024a). Unbeknownst to the female participants, the locker rooms and adjacent bathrooms were designated “unisex” for the sole purpose of allowing Thomas full access to all restrooms and changing facilities in the building. However, no verbal or otherwise announcements or signs were placed to inform the female athletes of this change. The girls were compelled to shower, dress, and undress in front of or in the same space as Thomas, who was often fully exposed in front of the women in the locker rooms (Gaines v. NCAA, 2024a). In their motion to intervene, the National Women’s Law Center’s (NWLC’s) alternative solution for the female athletes who were “uncomfortable and inconvenienced” (Gaines v. NCAA, 2024b p. 38) by being exposed to Thomas’ naked body in the locker rooms could accommodate their right to bodily privacy by “change(ing) in stalls or a separate storage area (a closet)… or single-user facilities” (Gaines v. NCAA, 2024b, p. 38).
One interesting aspect of this case was the intervention proposed by the NWLC, which sought to become a party in the ongoing proceedings (Gaines v. NCAA, 2024b). They argued that the NCAA was not in a position to sufficiently defend the policies or rights of transgender women, which were central to this case. The NWLC further claimed that none of the existing parties could adequately defend the legality of the policies. The U.S. District Court for the Northern District of Georgia, however, disagreed and denied the NWLC’s petition for intervention (Gaines v. NCAA, 2024c).
The student-athletes with remaining NCAA eligibility seek declaratory and injunctive relief regarding the NCAA’s Transgender Eligibility Policies (Gaines v. NCAA, 2024a). At the same time, the plaintiff and members of the class who have experienced discriminatory treatment and suffered emotional distress “are entitled to declaratory relief, compensation, punitive damages, and attorneys’ fees under 42 U.S.C. §§ 1983 and 1988” (Gaines v. NCAA, 2024a, p. 34).
As a former Division I swimmer and coach, I can relate to the plaintiffs in this case. I can attest to the close quarters and the extended time spent undressing while changing in and out of a tech suit. Furthermore, I do not believe this case is “reinforcing pernicious sex stereotypes and depriving all individuals of the benefits of inclusive policies” (Gaines v. NCAA, 2024b, p. 8), as the NWLF stated. Instead, it represents a desperate attempt to protect women’s sports and maintain a sense of decency and common courtesy when women are in their most vulnerable state. It is paramount to recognize that transgender athletes are not the only individuals who need protection.
Stephanie Barnes is a doctoral student in Sport Management at Troy University. She is also a professional swimming coach and holds two Master’s degrees: one in Sport Management from Liberty University and another in Exercise Science from Auburn University. Recently, she presented her thesis at the 2025 COSMA Conference in Las Vegas, Nevada.
References
AP News. (2024, March 15). College swimmers, volleyball players sue NCAA over transgender policies. AP News. https://apnews.com/article/transgender-lia-thomas-swimming-lawsuit-b7df63108a03100f36b2e4364d585cdc
Gaines v. National Collegiate Athletic Association, No. 1:24-cv-1109-TRJ (N.D. Ga., March 14, 2024a).
Gaines v. National Collegiate Athletic Association, No. 1:24-cv-1109-MHC (N.D. Ga., May 6, 2024b).
Gaines v. National Collegiate Athletic Association, No. 1:24-cv-1109- MHC (N.D. Ga., November 1, 2024c).
Griswold v. Connecticut, 381 U.S. 479 (1965).
Justia. (2024, October 15). Privacy rights and personal autonomy legally protected by the Constitution. https://www.justia.com/constitutional-law/docs/privacy-rights/
Loving v. Virginia, 388 U.S. 1 (1967).
Schlam Stone & Dolan. (2024, March 15). Current and former female college athletes file lawsuit challenging NCAA transgender eligibility policies. https://www.schlamstone.com/blogs/the-courts-and-the-culture-war/2024-03-15-current-and-former-female-college-athletes-file-lawsuit-challenging-ncaa-transgender-eligibility-policies
Sutherland, J. (2022, March 22). 2022 Women’s NCAA championships: Results & records summary. SwimSwam. https://swimswam.com/2022-womens-ncaa-championships-results-records-summary/
SwimSwam. (2025, January 30). Emma Weyant bio. https://swimswam.com/bio/emma-weyant/
University of Pennsylvania Athletics. (2023). Men’s swimming & diving: Will Thomas. https://pennathletics.com/sports/mens-swimming-and-diving/roster/will-thomas/14590
