The Courts and the Culture War

Posted: March 15, 2024 / Written by: Elizabeth Wolstein /

Current And Former Female College Athletes File Lawsuit Challenging NCAA Transgender Eligibility Policies

A group of current and former female college athletes has filed a sprawling class action lawsuit challenging NCAA policies that allow transgender women (biological men) to compete on women’s teams. The suit, Gaines v. National Collegiate Athletic Ass’n et al., was filed on March 14, 2024, in the U.S. District Court for the Northern District of Georgia, in Atlanta, against the NCAA, several Georgia public universities, and individual members of the Board of Regents of the University of Georgia system. It asserts claims for discrimination against women under Title IX and the Equal Protection Clause, and for violation of the right to bodily privacy.  Factually, the complaint focuses on the 2022 NCAA Swimming and Diving Championships held at Georgia Tech, but the plaintiffs also include female athletes who participate in NCAA competitions in track and field, volleyball, and tennis.

Title IX applies to educational entities that receive federal funds, which is the case for virtually all NCAA member colleges and universities.  The complaint makes the threshold allegation that the NCAA, an unincorporated voluntary association, is subject to suit under Title IX because “colleges and universities which are recipients of federal financial assistance cede control over aspects of college athletics to the NCAA,” an issue the complaint alleges was left open by the Supreme Court in NCAA v. Smith, 525 U.S. 459 (1999). Gaines v. NCAA Complaint ¶ 44.  For 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 “where it collaborates or participates in a constitutional violation for which a state actor may also be held responsible;” where the state actor delegates authority to the private actor; or where the state provides “a mantle of authority that enhance[s] the power of” the private actor.  Id. ¶¶ 104, 106.

The NCAA transgender eligibility policies allow biological males to compete on women’s teams if they have undergone one year of testosterone suppression to reach a specified reduced threshold, which is assessed based on a single blood test and is not subject to ongoing monitoring by the NCAA. Id. ¶¶ 236, 256. The complaint alleges that for all 25 NCAA women’s sports the permissible level of testosterone for biological males competing as women “is higher than the highest level of testosterone women can produce without doping.”  Id. ¶ 57. The complaint marshals “scientific research papers” supporting the conclusion that “testosterone suppression does not work to bridge” the performance gap between male and female athletes.  Id. ¶ 202.  The complaint lays out quantitative evidence of the performance gap and its physiological and genetic basis.  See generally id. ¶¶ 180-209.     

The NCAA transgender policies also made women’s locker rooms into unisex locker rooms, which allowed, for example, U. Penn swimmer Lia Thomas, “a fully grown adult male with full male genitalia” to use the same locker rooms as those used by more than 300 female swimmers, who were therefore required to change and shower in the same locker room as Thomas.  Id. ¶ 109. The NCAA chills dissent from its “radical anti-woman agenda” through a speech code that warns of consequences for homophobic and transphobic “language or conduct.”  Id. ¶¶ 25, 28-31.

The complaint asserts that the NCAA transgender policies “disproportionately burden female athletes by reducing female competitive opportunities, forcing female athletes to compete against males in sex separated sports, [and] depriving women of equal opportunities to protect their bodily privacy,” id. ¶ 63, in violation of Title IX, the Equal Protection Clause, and the right to bodily privacy.  Plaintiffs seek declaratory and injunctive relief, damages, and attorneys’ fees.  For the declaratory and equitable relief the complaint seeks a declaration that the defendants have violated Title IX and the Fourteenth Amendment, and an injunction enjoining defendants from enforcing the NCAA transgender eligibility policies; requiring the NCAA to render males ineligible to compete on women’s teams; requiring the NCAA to revise any awards and other recognition based on any competition in which a male participated pursuant to NCAA policies; and enjoining the University of Georgia system from operating any locker room so as to permit a male athlete to use women’s facilities.

We will continue to follow this significant case as it unfolds.