Summary of Riley Gaines, et al. v. NCAA, et al. Complaint, filed 03/14/2024
Sixteen current and former collegiate female athletes are reiterating Justice Kavanaugh’s assertion from Nat’l Collegiate Ass’n v. Alston, (2021), that “[t]he NCAA is not above the law,” in their class action lawsuit against the NCAA. The full text of the Complaint can be found here. They argue that the NCAA’s transgender policies allowing men to compete on women’s teams violate Title IX, forcing non-consenting female athletes to share spaces where they must “expose their naked or partially clad bodies to males,” thus infringing on their constitutional right to privacy and reducing them to a testosterone level (page 7).
The sixteen plaintiffs bring three counts against the NCAA: (1) Violations of Title IX, (2) Violations of the Fourteenth Amendment and Equal Protection Clause, and (3) Violation of the Right to Bodily Privacy. The legal team representing the plaintiffs emphasizes that their use of terms like “male/man” and “woman/female” in their Complaint strictly adheres to biological definitions. Title IX and the Civil Rights Act of 1964 define “sex” solely in terms of biological distinctions between males and females, without consideration for “gender identity.” Maintaining fidelity to the plain language of Title IX necessitates defining transwomen as males (page 21).
The NCAA is a multibillion-dollar business intended to “maximize the revenue [of] college sports,” and as such, colleges and universities sign away control of athletic program regulation to the NCAA (page 6). At the expense of female athletes, the NCAA’s Transgender Eligibility Policies are in bed with the most radical forms of diversity, equity, and inclusion policies (DEI) on college campuses in order to boost campus approval ratings and accumulate financial gains. Athletes are forced to abide by the NCAA’s “Code of Silence,” and “LGBTQ-Inclusive Codes of Conduct,” which outline consequences for any kind of transphobic or homophobic behavior or speech.
Section 901(a) of Title IX prohibits discrimination based on sex in any federally funded education program or activity, and regulations under Title IX demand sex-separated teams, competitions, and facilities as the standard practice to ensure equal opportunities for women (page 142). Ignoring that, the NCAA now allows biological males who identify as female to compete in women’s sports, effectively penalizing female athletes who object. While typically only “state actors” are liable for constitutional violations, the NCAA can be considered a state actor under Supreme Court precedent. In NCAA v. Smith (1999), both the United States and Smith argued as amicus curiae that the NCAA should be held accountable under Title IX. This is because although colleges and universities are the direct recipients of federal funds, they cede controlling authority over federally funded athletic programs to the NCAA, shifting responsibility for compliance with Title IX to the NCAA.
The NCAA’S Transgender Eligibility Policies (TEP) allow men to compete on women’s teams and shower in female locker rooms on the sole premise that biological distinctions between the sexes can be overcome by testosterone suppression (TS). However,
[I]n 19 out of 25 NCAA women’s sports the testosterone threshold for males who want to compete as women is 10 nanomoles per liter (nmol/L) which is five times greater than the highest level of testosterone any woman produces without doping. In six NCAA women’s sports the threshold is lower than 10 nom/L. However, in every single NCAA women’s sport the NCAA’s testosterone threshold applicable to males who seek to compete against women is higher than the highest testosterone level women can produce without doping (page 14-15).
Hormone treatment and personal choice are not only insufficient grounds for male eligibility, but they are illegal under Title IX and wrong as a matter of scientific fact. The Transgender Equity Policy (TEP) throws opportunity for fair competition, resources, accolades, medals, free speech, and privacy of women out the window.
Under the Fourteenth Amendment’s Civil Rights Act of 1871, liability is imposed on anyone who deprives a U.S. citizen jurisdiction of rights, privileges, or immunities secured by the U.S. Constitution. The legal team representing the female athletes contends that the NCAA’s policies violate these athletes’ constitutional right to bodily privacy, as established by the Eleventh Circuit Court of Appeals in Fortner v. Thomas, (1993).
Plaintiffs cite developmental biologist Dr. Emma Hilton and sport physiologist Dr. Tommy Lundberg, who report that men typically outperform women in sports by 10-50% (page 48). They explain how prenatal testosterone exposure leads to disparity in muscle mass between men and women: women generally have about 50% of men’s upper arm strength and 75% of their leg muscle capacity, even adjusting for height and weight differences. Higher testosterone levels in men enhance oxygen transport to muscles, improving athletic performance. To put the data of the “Male-Female Sport Performance Gap” in perspective, “every woman’s world record in every track and field event is bested every year by dozens, and in many cases hundreds, of high school age males” (page 52-54).
Male athletes on testosterone suppressing (TS) treatment do not eliminate the gender performance gap. Despite some reduction in muscle mass after a year, they “generally maintain their strength levels” (page 56). Even after years of gender-affirming hormone treatment (GAHT), transgender men retain a biological advantage over women. The NCAA’s Transgender Equity Policy hinges on TS as justification, yet the NCAA has never published data supporting its arbitrary thresholds for transgender athletes. Under these rules, a male athlete can compete in women’s sports with a single blood test showing testosterone levels below 10 nmol/L within 28 days of competition and a doctor’s note confirming one year of TS, without ongoing testosterone monitoring. While the NCAA rigorously tests female athletes for anti-doping compliance, it conducts no such monitoring of male testosterone levels for transgender athletes competing in women’s sports.
Moreover, there are unignorable discrepancies between the NCAA’s trans policies and the policies of international sports bodies. Athletes are not eligible for USA Swimming or the Olympics “unless the athlete demonstrates [a] concentration of testosterone…less than five nmol/L… continuously for a period of at least 36 months” prior to the date of application. Additionally, a minimum of three blood tests are required (page 67). Additionally, USA Diving requires trans divers to have undergone hormone suppression starting at the developmental stage “Tanner Stage 2,” which starts around the age of 12. Similarly, the NCAA’s testosterone threshold for women’s water polo, cross country, track & field, rowing, and triathlons are not faithful to Olympic, World Aquatic, USATF, World Athletics, World Rowing, or World Triathlon standards, respectively, despite their claims otherwise.
The 2010 NCAA Transgender Participation Policy allowed men to compete in women’s sports with just one year of TS treatment with no specific level of testosterone suppression required. Fast-forward to 2021, the NCAA Board of Governors released a statement threatening to withdraw NCAA events from states that were passing the increasingly popular “Saving Women in Sports” legislation. NCAA leadership then published a statement regarding their eligibility policies, making it clear they would retaliate against those who criticized the TEP.
The NCAA conveniently, and not coincidentally, timed the new statement to deflect attention from an impending loss in the Supreme Court in NCAA v. Alston and instead boost collegiate sport monetization gains from LGBTQ+ activist groups on college campuses (page 85). Furthermore, the NCAA imposed speech codes aimed to ensure athletes would not vocally dissent, on threat of scholarship removal or disciplinary action (page 8, 84, 87, 93-94).
On January 19, 2022, the NCAA issued a press release announcing its commitment to follow the transgender eligibility policies of U.S. national governing bodies (NGBs) for respective collegiate sports. On February 1, 2022, USA Swimming adopted an official Transgender Eligibility Policy. USA Swimming’s TEP was rejected by the NCAA just weeks after the NCAA board of governors declared its commitment to adhere to trans eligibility rules of relevant U.S. NGBs. Had USA Swimming’s requirements been accepted by the NCAA, Lia Thomas would not have been allowed to compete in the 2022 NCAA Women’s Swimming Championships.
“The NCAA’s Transgender Eligibility Policies are a house of cards, ill grounded and insubstantial in every way, and without scientific substance or merit. They exist only as a fig leaf for the NCAA’s ideology-driven decision to subordinate women’s opportunities in sport to the interests of men who declare themselves transgender. No men are disadvantaged by the NCAA’s [TEP], only women are” (page 80).
Leading up to the 2022 Women’s Swimming and Diving Championships in Atlanta, Georgia, the NCAA took deliberate action to amend and adopt policies to allow the biologically male “Lia Thomas” to shower and compete alongside women. Plaintiff Riley Gaines encountered the NCAA’s transgender policies during her senior year on the University of Kentucky swim team. Gaines’ teammates discovered that UPenn’s Lia Thomas, who was first in the nation for sprinting and distance events, a breadth of capability that even female Olympian swimmers hadn’t demonstrated before, had formerly competed on the men’s swim team as “Will Thomas.”
During the 2022 Championships at McCauley Aquatics Center, the small size of the women’s locker rooms meant female competitors were within 10-15 feet of each other while changing into stiff competition suits. This process can take up to 40 minutes, during which competitors must undress, exposing private parts of their bodies for extended periods. The plaintiffs felt humiliated and embarrassed at the Championships when encountering Lia Thomas, a 6’4” male with full genitalia, in what was previously a female-exclusive locker room. It was only female competitors who were subjected to this humiliating and unsafe situation (page 97-106).
Plaintiff Reka Gyorgy, a former 2016 Olympian competing for Virginia Tech, wept in the corridor outside the competition pool after the last heat for the 500 freestyle. Reka had placed 17th out of the 68 swimmers for the 500 free, meaning that she had missed competing in the Consolation Finals (for places 9th-16th) by one spot, which had been taken by Lia Thomas. The Olympian was crushed.
In the A Final for the 500 free, Thomas beat the 2nd, 3rd, and 4th place finishers with a winning margin of over a second-and-a-half. These finishers were all Olympic medalists who had competed in the Tokyo Games the previous summer.
Both Riley Gaines and Lia Thomas tied for 5th place in the 200 free A Final with a time of 1:43:40. Despite the tie, only Thomas held the trophy during the podium photo session. Gaines was told by an NCAA official that they “had been advised that when photos are taken it is crucial that Lia Thomas holds the trophy” (page 117).
Before hormone and testosterone suppression treatment, Thomas swam the 100 free in 47.15 while competing for the UPenn men’s swim team. Post-treatment at the NCAA 2022 Championships prelims, his time was 47.37. His testosterone suppression minimally reduced his male advantage. Swimming World Magazine published an article analyzing the retained male advantage that Thomas held; “The fact that the University of Pennsylvania swimmer soared from a mid-500s ranking… in men’s competition to one of the top-ranked swimmers in women’s competition tells the story of the unfairness which unfolded at the NCAA level” (page 123).
The other plaintiffs who compete in track and field, volleyball, soccer, and tennis, are concerned over future competitions where they’ll have to face male competitors, perhaps unknowingly, in sports with much more physical contact than that of swimming.
The defeat of female athletes by transgender competitors is written in biology and exacerbated by the NCAA’s egregious disregard of self-evident truths. Women are not physiologically equal to men and expecting them to surrender the privacy and rights they faithfully fought for tramples on the very premise of Title IX: men and women are not interchangeable.
—
Rebecca Phillips is CWA’s Ronald Reagan Memorial 2024 Intern for our Legal Studies Department.