‘Misinterpretation of Title IX’
By Professor Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
In reversing its current policy which allowed in most instances for transgender student-athletes to compete in sanctioned events based upon their gender identity, the NCAA announced on February 6, 2025, that all competition in women’s sports will now be limited to those student-athletes who were assigned female at birth. This change comes in the wake of the Trump Administration’s hyperbolic “Keeping Men Out of Women’s Sports” executive order which states, in part, that “educational institutions and athletic associations have allowed men to compete in women’s sports” and that allowing such “is demeaning, unfair, and dangerous to women and girls, and denies women and girls the equal opportunity to participate and excel in competitive sports.” (https://www.whitehouse.gov/presidential-actions/2025/02/keeping-men-out-of-womens-sports/).
The Administration, in order to enforce its politically motivated mandate has threatened, through a misinterpretation of Title IX of the Education Amendments Act of 1972 (Title IX), to have the U.S. Department of Education investigate schools such as San Jose State University and the University of Pennsylvania for what it believes are “apparent Title IX violations” relating to transgender women competing in women’s sports and by denying federal funding to any and all high school and college athletic programs that do not strictly adhere to its executive order.
The NCAA’s position regarding transgender competition over the years, for the most part, was apolitical and based upon data and independent scientific studies regarding fairness and competitive advantages in transgender competition. Such is evidenced by the fact that in 2010, the NCAA, after commissioning reports from both the National Center for Lesbian Rights and the Women’s Sports Foundation, adopted a policy that permitted transgender female athletes to compete in women’s sports if that athlete met certain criteria and had undergone at least one year of testosterone suppression treatment. In 2022, the NCAA modified it policy slightly, wherein transgender participation was determined by specific testosterone levels as allowed by the individual sport’s national or international governing body or the International Olympic Committee. Throughout it all, however, the NCAA’s fundamental principles regarding transgender participation was built around inclusiveness, as opposed to exclusiveness, and included language such as: “All stakeholders in NCAA athletics programs will benefit from adopting fair and inclusive practices enabling transgender student-athletes to participate on school sports teams.” (NCAA Inclusion of Transgender Student-Athletes, August 2011, p. 8).
Now, with this new Executive Order in place, the NCAA Board of Governors implemented a bifurcated policy which states that regardless of sex assigned at birth or gender identity, a student-athlete may participate (practice and compete) with a men’s team, while at the same time mandating that a student-athlete assigned male at birth may not compete on a women’s team. (https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx). In addition, the Board instructed that its new policy was to go into effect immediately and that it would supersede any previous policies that allowed transgender athletes to compete in the sport in which they identified.
NCAA president Charlie Baker said in a statement regarding the Board of Governors’ decision, “The NCAA is an organization made up of 1,100 colleges and universities in all 50 states that collectively enroll more than 530,000 student-athletes. We strongly believe that clear, consistent, and uniform eligibility standards would best serve today’s student-athletes instead of a patchwork of conflicting state laws and court decisions. To that end, President Trump’s order provides a clear, national standard.” (https://www.npr.org/2025/02/07/). President Baker went on to state that “The updated policy . . . follows through on the NCAA’s constitutional commitment to deliver intercollegiate athletics competition and to protect, support and enhance the mental and physical health of student-athletes. This national standard brings much needed clarity as we modernize college sports for today’s student-athletes.” (https://www.npr.org/2025/02/07/).
It should be noted that while the NCAA is capitulating to the political whims of the new administration, President Baker recently testified at a congressional hearing in December 2024 that even though the topic of transgender athletes competing at the college level has become a hot-button political issue, that there were fewer than 10 transgender student-athletes across all three NCAA divisions, or less than .0000188% of the over 530,000 student-athletes competing throughout its member institutions.
Many argue that banning transgender athletes in women’s supports amounts to outright discrimination and targets a very small segment of the student-athlete population. Others, however, believe that transgender women, regardless of the science, have an unfair competitive advantage. Whatever your position, however, college athletic administrators need to be aware that there will likely be several legal challenges to the Administration’s Executive Order and that if it is enjoined or otherwise invalidated, the NCAA may soon be revising its transgender participation policy once again to be more in line with its long-standing policy of inclusion rather than exclusion and its belief that all women are good enough to compete.
