By Ellen J. Staurowsky, Ed.D., Senior Contributor and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College staurows@ithaca.edu
In a lawsuit filed against the National Collegiate Athletic Association (NCAA), the University System of Georgia, and numerous administrators, sixteen current and former women athletes seek to remove any evidence that transgender women athletes deemed eligible to compete on a college team under NCAA rules and/or participated in an NCAA championship ever existed. They seek to accomplish this through a determination that the NCAA Transgender Athlete Policy in place from 2011 and revised in 2022 constituted unlawful sex discrimination under Title IX and the right to bodily privacy under the Equal Protection Clause of the 14th Amendment, warranting injunctive relief from the policy. They further ask that any points earned through the performances of transgender women athletes that accrued to their respective teams and any awards be redistributed to other teams and competitors and any evidence of their achievements removed from record books. The Plaintiffs further seek compensation for damages (actual, nominal, punitive, compensatory) they suffered due to alleged mental and emotional distress as a result of participating alongside of and against those transgender women athletes or even being confronted with the possibility of such circumstance.
The lawsuit was filed nearly two years to the day after Lia Thomas, a University of Pennsylvania swimmer, became the first transgender athlete in NCAA Division I history to win a national title after she claimed victory in the 500-yard freestyle at the Division I Women’s Swimming and Diving Championships held at Georgia Tech. One of the swimmers who competed against Thomas in several events at that championship is lead plaintiff, Riley Gaines, a former All-American from the University of Kentucky who shared the podium with Thomas following their mutual fifth place finishes in the 200-yard freestyle event. Within weeks of the championship, Gaines emerged on the national scene as a vocal supporter of legislative efforts proposed around the country to bar transgender girls and women from competing on women’s teams.
As a threshold matter, the Plaintiffs will first need to establish that the NCAA is bound by Title IX given the NCAA’s position that it is not a recipient of federal funding and therefore not subject to Title IX’s reach. The NCAA’s stance on this is grounded in a unanimous decision from the U.S. Supreme Court issued in 1999 in Smith v. NCAA, when Justice Ruth Bader Ginsburg clarified that even if the NCAA benefitted indirectly from the federal financial assistance that flowed through their dues paying member institutions, it was insufficient to trigger a Title IX obligation. In addressing this issue, the Plaintiffs argue that the ruling in Smith narrowly focused on the dues member institutions paid and not the relationship that exists between the NCAA and its members, where the two are effectively indistinguishable (the NCAA is its membership). Drawing upon amicus curiae briefs submitted from Smith and the United States, the Plaintiffs note that when “a recipient cedes controlling authority over a federally funded program to another entity, the controlling entity is covered by Title IX regardless whether it is itself a recipient” (NCAA v. Smith, 525 U.S. at 469-470 as quoted in the complaint on pages 10-11).
A second threshold issue raised in this case is the definition of a woman athlete. The Plaintiffs ignore the concept of gender identity and assert that “sex” as “it was meant in Title IX…” refers “…solely to binary, biological sex” (Gaines et al. v. NCAA et al., 2024, p. 5). Characterizing transgender women athletes as male, Plaintiffs argue that the presence of transgender athletes deprived them of equal opportunities to participate and to benefit from equal treatment. They further argue that the only way that equal opportunity and treatment for women athletes can be achieved is through a sex category for women determined on the basis of biology, relying on what they refer to as scientific evidence that men are stronger, faster, and bigger, as a consequence they pose threats to both access to athletic opportunity and safety while participating.
There are nuances to this case that make for interesting reflection. The arguments as developed in the case assume that the sex or gender binary categories the Plaintiffs claim are required under Title IX existed in the 1970s when the interpretation and regulations were issued and exist now. While it is beyond dispute that a binary arrangement has shaped college athletic departments at the time of Title IX’s passage and well before that with separate men’s and women’s physical education programs and athletic programs (housed in what were once all-men’s and all-women’s institutions as well as co-educational institutions), the boundaries around these binary spaces have been permeable over the span of many years. If, for the sake of argument alone, a “male” presence is threatening to women athletes and deprives them of opportunities and safe places to play and is accepted as such, why have so many coaches of women’s teams in the sports of basketball, volleyball, soccer, and others advocated to have men practice regularly with their teams? In the sport of swimming, there are different models of programs at the NCAA Division I level with some programs run as combined men’s and women’s co-ed teams and others run as single-sex teams. In co-ed programs, men and women train together in environments similar to what they may have trained in long before they got to college when they were competing in club and high school programs (Johnson, 2022). If the gender gap the Plaintiffs argue is so great and the threat to safety so high as to require an impermeable boundary around women’s sport, what does that argument do to the co-ed spaces that exist within athletic departments? Are the Plaintiffs advocating that those no longer be permitted as well?
There are also issues associated with some of the damage claims put forward by the plaintiffs. While the plaintiffs are trying to establish that the presence of a transgender woman on a women’s team harms all women in college sport, and therefore the Plaintiffs should be recognized as representing a class of Plaintiffs similarly situated, much of the argument might be viewed as speculative given the extremely low number of transgender women athletes who compete on NCAA teams. An oft-cited number of transgender athletes competing on varsity teams at the college level (including junior college, NCAA, and NAIA schools) is 39 between 2010 and 2022 (Zeigler, 2022). Noting that privacy laws make it difficult to know the exact number of transgender athletes, medical researcher Joanna Harper estimated that the number would not be more than 100 nationwide in public schools (Skinner, 2023). The NCAA has a membership of more than 1100 colleges and universities, offers 90 championships, and issues rules that affect more than 520,000 athletes. The complaint itself identified three transgender women athletes – Lia Thomas, the Penn swimmer (graduated-no longer competing); Cece Telfer who won an NCAA Division II track and field title in the 400-meter hurdles in 2019 (graduated – no longer competing); and an unidentified transgender woman who sought permission to compete on the Roanoke women’s swim team in the fall of 2023 but dropped the request before the start of the season (never participated on the women’s team). Interestingly, a rally to “Protect Women’s Sports” at Roanoke was streamed by the Independent Women’s Forum on October 5, 2023, two days after the transgender woman had withdrawn their request to participate on the team.
While the lawsuit appears on the surface to aspire to establish definitionally that the interests of women athletes can be protected by barring transgender women from participating on the basis of biological sex, such a determination opens the door for womanhood itself to be questioned with the necessity of producing verification. Such examination has had a long history of being played out in sport through the practice of sex testing, a potential reality that stands to violate the very essence of the law by subjecting all women athletes to a level of scrutiny not required of their brethren. Further, Title IX’s prohibition of sex discrimination has been interpreted to include discrimination on the basis of sex-based characteristics and stereotypes. Thus, “Excluding transgender students from school sports amounts to discrimination ‘on the basis of sex’ in violation of the plain text of Title IX. As the Supreme Court explained in Bostock, ‘it is impossible to discriminate against a person for being… transgender without discriminating against that individual based on sex’” (Transgender Legal Defense and Education Fund et al., 2023, p. 17).
This lawsuit comes at a time when the Biden Administration was scheduled to release finalized updates to Title IX regulations that would have, in proposed form, made it illegal under Title IX to rely on a blanket policy to bar trans women athletes from women’s teams. Given the delays, it is possible that the finalization of those regulations may be delayed further or perhaps this case will prompt their release.
This case awaits a response from the NCAA and other defendants. It is likely that they will move to dismiss. There is much more to come on this in the future.
References
Riley Gaines et al. v. National Collegiate Athletic Association. United States District Court Northern District of Georgia Atlanta Division. Case 1:24-cv-01109-MHC .(2024). https://www.iconswomen.com/wp-content/uploads/2024/03/Filed-Complaint-Against-the-NCAA.pdf
Independent Women’s Forum. (2023, October 5). Rally to Protect Women’s Sports, Roanoke College. https://twitter.com/i/broadcasts/1yoKMwvDXPdJQ
Johnson, A. (2022, November 8). How do combined v. single-sex NCAA programs affect collegiate performance? Swimswam.com. https://swimswam.com/how-do-combined-vs-single-sex-ncaa-programs-affect-collegiate-performance/
Roanoke College. (2023, October 5). Statement regarding transgender student participation in athletics. Press release. https://www.roanoke.edu/news/transgender_sports_statement
Skinner, A. (2023, April 21). How many transgender women athletes play sports? Newsweek. https://www.newsweek.com/how-many-transgender-athletes-play-womens-sports-1796006
Transgender Legal Defense and Education Fund, Harvard Law School LGBTQ+ Advocacy Clinic, and Athlete Ally. (2023, May 15). Letter to The Honorable Miquel Cardona Secretary U.S. Department of Education and The Honorable Catherine Llhamon Assistant Secretary for Civil Rights U.S. Department of Education. Re: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams (Federal Register 88, no. 71); ED-2022-OCR-0143. https://www.athleteally.org/wp-content/uploads/2023/05/2023.05.15-TLDEF-AA-HLS_Title-IX-comment_FINAL.pdf
Zeigler, C. (2022, January 7). These 39 transgender student-athletes have competed openly in college. Outsports.com. https://www.outsports.com/2022/1/7/22850789/trans-athletes-college-ncaa-lia-thomas/
