By Logan P. Kelly and McKinley A. Crone
Governing bodies across sport are increasingly adopting categorical restrictions on transgender participation in women’s divisions. As these policies evolve, organizations face growing exposure to legal challenges rooted in discrimination law, constitutional protections, and questions of regulatory authority. Earlier policies from the International Olympic Committee (IOC), NCAA, and national governing bodies such as USA Rugby relied primarily on hormone thresholds or sport-specific eligibility criteria. More recent policy revisions, however, restrict participation in women’s categories to athletes assigned female at birth, while introducing “open” divisions intended to accommodate transgender athletes. These changes raise complex legal questions surrounding fairness, safety, inclusion, and potential discrimination.
Historically, hormone-based eligibility standards formed the foundation of transgender participation policies. Governing bodies frequently cited testosterone levels as a proxy for competitive advantage and competitive integrity. However, research examining transgender participation has found limited empirical evidence demonstrating a consistent athletic advantage tied solely to hormone therapy. Jones et al. (2016) concluded that although testosterone-based policies were commonly used, scientific evidence supporting competitive advantage remained inconclusive. This gap between policy justification and empirical evidence has contributed to inconsistent decision-making across governing bodies and heightened legal scrutiny regarding whether exclusions are justified or discriminatory.
In response to these concerns, some organizations have implemented “open divisions” to balance inclusion and competitive fairness. USA Cycling and USA Rugby have adopted policies that restrict women’s divisions to athletes assigned female at birth while creating open categories for participation regardless of gender identity. These structural changes attempt to address fairness and safety concerns, particularly in contact sports, but simultaneously introduce legal questions regarding whether such divisions constitute meaningful participation opportunities or create a “separate-but-equal” framework vulnerable to discrimination claims.
The NCAA has taken a more cautious approach, in part due to its relationship with member institutions subject to Title IX. Title IX prohibits sex-based discrimination in educational programs receiving federal funding, including intercollegiate athletics. Because NCAA member institutions fall within Title IX’s scope, categorical exclusions based on sex assigned at birth may create potential exposure to discrimination claims. While the IOC and national governing bodies such as USA Rugby are not directly bound by Title IX, member institutions and affiliated programs may still face compliance challenges when governing body rules conflict with federal anti-discrimination requirements.
These policy developments also raise constitutional concerns, particularly when implemented by public schools, state athletic associations, or other government actors. The Fourteenth Amendment’s Equal Protection Clause prohibits states from denying individuals equal protection of the laws. Courts reviewing transgender athlete participation cases increasingly evaluate whether restrictions constitute sex-based discrimination and whether transgender status should be treated as a protected class. These determinations affect the level of judicial scrutiny applied to policies and the likelihood that restrictions will survive constitutional challenges.
Legal risk is further heightened by inconsistent policies across governing bodies. Athletes competing in multiple organizations may be eligible under one policy but excluded under another. For example, a track and field athlete may remain eligible under NCAA rules while being ineligible under IOC standards for international competition. This fragmented regulatory landscape creates uncertainty for athletes and administrators while increasing the likelihood of litigation over eligibility decisions.
Safety-based justifications have been particularly influential in policy changes involving contact sports. Governing bodies have cited injury risk and competitive fairness as rationales for restricting participation in women’s divisions. However, critics argue that limited empirical evidence supports categorical exclusions based on safety alone. Without clear scientific support, organizations implementing such restrictions may face challenges asserting that policies are substantially related to legitimate objectives, particularly under heightened scrutiny in constitutional cases.
As policy shifts accelerate, administrators and legal counsel must navigate a rapidly evolving landscape where governance decisions often move faster than judicial precedent. The transition from hormone-based eligibility to categorical exclusions and open divisions represents a significant shift from inclusion-focused policies toward risk management strategies. This shift raises questions about potential liability, including whether open divisions provide meaningful participation opportunities, whether exclusions constitute sex discrimination, and whether governing bodies exceed their regulatory authority.
Ultimately, transgender participation policies have moved beyond theoretical governance debates into areas of tangible legal exposure. Organizations must now balance fairness and safety considerations against anti-discrimination obligations, constitutional protections, and athlete participation rights. The increasing adoption of categorical restrictions and open divisions ensures that litigation will continue to shape the future of transgender participation in sport.
Recent Policy Changes
- February 5th, 2025, President Trump signed Executive Order 14168, defining that funds would not be given to educational programs that allow transgenders to compete in sport. It also states that male competition in female sport is unsafe and should be opposed.
- February 6th, 2025, the NCAA announced an update to their transgender policy, limiting competition in women’s sports to student-athletes assigned female at birth only. The new policy permitted those born male at birth to practice while receiving medical care but could not participate in competitive matches.
- June 1st, 2025, the FA changed their rules to only allow biological females (i.e. those born with ovaries) to play in open matches and competitions that are for women
- September 15th, 2025, USA Cycling in accordance with United States Olympic and Paralympic Committee changed policy from hormone requirement to biological assignment at birth and created an open category for competition among transgender athletes.
- February 27th, 2026, USA Rugby adhered their policy in conjunction with the United States Olympic and Paralympic Committee to start an “open” category for sport, which would permit any athlete regardless of gender assigned at birth and gender identification. This would then restrict the women’s division to those assigned female at birth.
- March 26th, 2026, the IOC updated their transgender athlete policy to change eligibility for any female category event at Olympics or any other IOC event, including individual and team sports, to be limited to biological females based on a one-SRY gene screening.
Cases
Recent litigation has shaped the legal landscape regarding transgender participation policies within sport. Courts are now facing questions regarding whether categorical retractions based on sex assigned at birth violate constitutional protection, Title IX, or competitive disadvantages. Three cases, Hecox v. Little (2024), B.P.J. v. West Virginia State Board of Education (2024), and Soule v. Connecticut Association of Schools (2020) have showcased the confrontation of legal theories that combat policy changes and highlight potential litigation risks when facing governing bodies.
Hecox v. Little
In 2020, the Fairness in Women’s Sports Act (H.B. 500) was created in Idaho, barring transgender women from participating in female athletic events in public schools. This was true for elementary school through college institutions. Lindsay Hecox, a transgender woman, who was a student at Boise State with aspirations of joining the cross-country team and Jane Doe, a cisgender woman, filed a suit alleging that the Fairness in Women’s Sports Act violated their constitutional rights through the 14th amendment’s Equal Protection Clause. Despite going through hormone therapy to lower her testosterone levels, Hecox was still excluded under the eyes of the law. In response, the district court granted a preliminary injunction against the law later that year. The U.S. Court of Appeals for the Ninth Circuit affirmed the injunction for Hecox, as well as remanded the case to the district to evaluate the scope of the injunction. In the time that it took for the appeals, Hecox decided that she did not want to compete in women’s sports, and filed a voluntary dismissed in district court because she no longer has a personal stake in the case, which was ultimately struck. The state argued that males competing against females is not fair, even with hormone therapy and testosterone suppression. They also argued that H.B. 500 is constitutional. On the other hand, Hecox argues that transgender women have no athletic advantage over cisgender women and that transgender persons face a heightened chance of discrimination. Hecox also argues that H.B. 500 does not promote equal opportunities for girls and women and including all transgender women in too broad. The debate now stands on whether the state can legally define “sex” dependent on biological sex at birth. It also still leaves the question on whether it preserves “fairness” in women’s sports and how inclusive versus discriminatory the policies can be.
B.P.J v. West Virginia State Board of Education
B.P.J is a transgender girl, has identified as so since the third grade, and has been taking puberty blockers and estrogen for the prevention of male puberty development. In 2021, West Virginia put in place the “Save Women’s Sports Act”, requiring public schools and college sports teams to be for biological sex only. In doing this, B.P.J. could not compete on the school’s cross-country and track team. After this Act was enacted, B.P.J.’s mother sued the West Virginia State Board of Education and the West Virginia Secondary School Activities Commission, claiming that B.P.J. being excluded violated the Equal Protection Clause in the 14th Amendment and Title IX. The district court granted B.P.J. a preliminary injunction which allowed competition during the litigation. When summary judgement came, the district court reversed it and upheld the law, saying that classification on biological sex was related to ensuring fairness in women’s sports. The U.S. Court of Appeals for the Fourth Circuit remanded, stating that the application of the law to B.P.J. did violate Title IX. This court causes to question, does “sex” defined under Title IX include gender identity. In addition to this question, does the athlete’s age and level of competition matter? Is there going to be irreparable harm done from allowing there to be competition? Overall, this case shows that there are as-applied challenges, and not just broad scopes applied.
Soule v. Connecticut Association of Schools
In Soule v. Connecticut Association of Schools, four cisgender female high school athletes, Selina Soule, Alanna Smith, Chelsea Mitchell, and Ashley Nicoletti, claimed that they lost medals, placements, and potential scholarships because they had to compete against transgender athletes. This lawsuit challenged a policy that allowed transgender girls to compete in women’s sports at the high school level in Connecticut. The defendants were the Connecticut Interscholastic Athletic Conference (CIAC) and two transgender athletes, Andraya Yearwood and Terry Miller. The four female athletes were represented by Alliance Defending Freedom, and they argued that the policy violated Title IX. The U.S. Court of Appeals for the Second Circuit ruled that the plaintiffs failed to show there was harm caused by the policy, and the transgender athletes did not have an unfair advantage or that records should be altered. By ruling in this way, the impact it has is that schools have a trans-inclusive policy in athletics in the state. This case raises the question of whether, does including transgender athletes in sports violate protections for female athletes.
These three cases individually address the legal tension between inclusion and the fairness in women’s sports, but from different perspectives of either the transgender athlete being excluded or the cisgender athletes feeling violated by Title IX. All three hinge on how “sex” is defined under the law and come together in the application. Hecox v. Little and B.P.J v. West Virginia State Board of Education bring forward whether excluding transgender women is discriminatory, and on the other hand, Soule v. Connecticut Association of Schools probes whether inclusion of transgender women is discrimination against cisgender women. The cases illustrate the unsolved legality of how to balance the ever-evolving gender identity questions, and the fairness claims of sex in athletics.
These three cases are not the only three where we are seeing policies questioned, new policy being formed, and new issues arise surrounding transgender women competing in the women’s sport divisions. All three cases point to the fact that the courts are faced with a decision regarding the sex assigned at birth and how that translates into constitutional protection, Title IX, and/or competitive disadvantages.
References
Association, T. F. (n.d.). Transgender & Non-Binary Participation. www.thefa.com. https://www.thefa.com/football-rules-governance/policies/transgender-and-non-binary-participation-policy
B.P.J. v. West Virginia State Board of Education, Case 2:21-cv-11111 (S.D.W. Va. 2021). https://www.aclu.org/cases/bpj-v-west-virginia-state-board-education/page/2?document=Complaint#legal-documents
Jones, B. A., Arcelus, J., Bouman, W. P., & Haycraft, E. (2016). Sport and transgender people: A systematic review of the literature relating to sport participation and competitive sport policies. Sports Medicine, 47(4), 701–716. https://doi.org/10.1007/s40279-016-0621-y
International Olympic Committee announces new policy on the protection of the female (women’s) category in Olympic sport. https://www.olympics.com/ioc/news/international-olympic-committee-announces-new-policy-on-the-protection-of-the-female-women-s-category-in-olympic-sport
Hecox v. Little (2024), No.20-35813 (9th Cir. 2024). https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/07/20-35813.pdf
NCAA.org. (2025, February 6). NCAA announces transgender student-athlete participation policy change. https://www.ncaa.org/news/2025/2/6/media-center-ncaa-announces-transgender-student-athlete-participation-policy-change.aspx
Policy VII: Competition category policy. USA Cycling. (n.d.). https://usacycling.org/about-us/governance/policy-vii-competition-category-policy
Rugby, U. (2026, February 27). USA Rugby Updates Competition Eligibility Policy. USA Rugby. https://usa.rugby/news/usa-rugby-updates-competition-eligibility-policy-2026227
Soule et al v. Connecticut Association of Schools et al., Case 3:20-cv-00201 (D. Conn. 2020). https://assets.adflegal.org/archive/dl/public/2020-04/Soule%20v.%20Connecticut%20Association%20of%20Schools%20-%20Complaint.pdf
The United States Government. (2025, February 5). Keeping men out of women’s sports. The White House. https://www.whitehouse.gov/presidential-actions/2025/02/keeping-men-out-of-womens-sports/
Logan P. Kelly is a Ph.D. student at Troy University, with a cognate area of Global Sport Leadership. Finishing his fourth consecutive term, he sets his eyes on a graduation date in 2028. He is president of Winchester Cannons Youth Rugby, active player for Western Suburbs Rugby Club, and works in Distribution Monitoring for Warner Bros. Discovery. He resides in Winchester, Virginia.
McKinley A. Crone is a Ph.D. student at Troy University, with a cognate area of Athletic Administration. In her second term, she plans to graduate in 2028. She currently plays professional soccer for the Orlando Pride in the NWSL as a goalkeeper, where she was a part of the double championship winning season in 2024. She resides in Orlando, Florida.
