The NCAA's Punts on Transgender Student-Athlete Participation.

• Author: Lens, Josh

TABLE OF CONTENTS ABSTRACT 1 TABLE OF CONTENTS 3 I. INTRODUCTION 4 II. THE NCAA AND ITS HISTORY OF EFFECTIVE SOCIAL ACTIVISM 10 A. The NCAA & Its Core Values, Missions, & Positions Regarding Inclusion & Discrimination 10 1. NCAA Governance 11 2. NCAA Core Values & Policies Regarding Inclusion & Discrimination 13 B. Instances Where the NCAA Exerted Its Economic Influence to Eschew Discrimination 14 1. Confederacy Symbols 18 2. Native American Imagery 20 3. Indiana's "Religious Freedom" Law 21 4. North Carolina's "Bathroom Bill" 25 III. FIRST PUNT: THE NCAA'S PASSIVE RESPONSE TO STATE LAWS PROHIBITING TRANSGENDER GIRLS AND WOMEN FROM PARTICIPATING IN SPORTS ALIGNING WITH THEIR GENDER IDENTITY 29 A. Background on State Legislation Prohibiting Transgender Girls and Women From Participating in Sports Aligning With Their Gender Identity 30 B. The NCAA's Response, or Lack Thereof, to State Laws Regulating Transgender Athlete Sport Participation 39 1. NCAA Warnings & Threats 40 2. Push Comes to Shove 45 IV. SECOND PUNT: THE NCAA'S REVISED TRANSGENDER STUDENT-ATHLETE PARTICIPATION GUIDELINES 50 A. The NCAA's 2010 Transgender Student-Athlete Participation Rules 50 B. The NCAA's 2022 Revisions to Its Transgender Student-Athlete Participation Policy 53 V. CONCLUSION 59 I. INTRODUCTION

University of Pennsylvania ("Penn") swimming and diving student-athlete Lia Thomas is currently the most controversial athlete in the United States. (1) As Thomas became one of the most dominant collegiate student-athletes in the country, she found herself in the middle of a national debate and a "real-time Rorschach test for how society views those who challenge conventions." (2)

When Thomas, a trans woman, (3) began competing on Penn's women's swimming and diving team in 2021, anti-transgender activists railed against the National Collegiate Athletic Association ("NCAA"). (4) While Thomas's participation on the women's team complied with NCAA policy effective at the time, detractors felt it was unfair to the competition. (5) Though her post-transition race times were slower, Thomas built on success she enjoyed while a member of the men's team, setting Penn and Ivy League records while becoming the nation's best female collegiate swimmer. (6)

Thomas's success left her feeling both liberated and besieged. (7) Assigned the male sex at birth, Thomas felt authentic, and her mental health improved after she transitioned and joined the women's team. (8) However, her accomplishments drew the right wing's scrutiny, and Thomas became a regular target on Fox News. (9) Even Thomas's own team grew bitterly divided, (10) with some cheering against her, her coach receiving hateful e-mails, and both Thomas and Penn's social media handlers turning off comments on social media posts. (11)

In the midst of Thomas's season competing on the women's team, the NCAA altered its policy for transgender student-athlete participation, (12) which some hailed as "a landmark policy of equality in sports as a human right." (13) Eschewing its "landmark policy," the NCAA effectively adopted the USA Swimming policy regarding transgender athlete participation for its swimming and diving student-athletes. For Thomas, this change meant that USA Swimming policy, not the NCAA's, would dictate whether she could compete in the swimming championships in March 2022. (14) A month before the championships, USA Swimming changed its policy to require trans women to undergo testosterone-suppressing treatment and maintain a level of fewer than 5 nanomoles/liter for 36 months. (15)

Thomas, however, had undergone thirty-four months of treatment when the championships took place, seemingly rendering her ineligible to swim in the championships. (16) The NCAA ultimately concluded, however, that Thomas could participate despite falling a couple of months short of USA Swimming guidelines after a subcommittee cited "unfair and potentially detrimental impacts" of strictly following the policy. (17) The announcement relieved Thomas. (18) "Far from dominating the competition, Thomas won one race and lost two others" in the championships. (19) Thomas's win was the first by a known transgender athlete in a United States college swimming championship. (20)

Thomas's championship ignited the ongoing national battle over trans-athlete sport participation eligibility, (21) resulting in even more backlash among right-wing politicians and groups seeking to restrict it. (22) For example, Florida's governor Ron DeSantis issued a proclamation that the runner-up to Thomas, a Floridian named Emma Weyant, was the "rightful holder of the race won by Thomas." (23) DeSantis explained the reasoning for his "determination" by claiming that "men should not be competing against women such as Emma Weyant" and that "Florida rejects the NCAA's efforts to destroy women's athletics, disapproves of the NCAA elevating ideology over biology, and takes offense at the NCAA trying to make others complicit in a lie." (24) Former University of Arizona swimming and diving student-athletes also weighed in, contending in a letter to the NCAA that Thomas's participation did "irrevocable damage to a sport that has transformed our own identities for the better." (25) The correspondence also expressed concern that universities could violate Title IX by offering athletically-related financial aid to transgender athletes. (26)

Many, including the NCAA, would agree that the legal future regarding transgender athlete participation is unclear. (27) A case like Hecox v. Little, (28) where a transgender cross-country athlete is suing Idaho over its state law banning transgender sport participation, the first of dozens like it nationally, could end up in the Supreme Court. (29) It is unsettled how Title IX applies to anti-transgender sport participation legislation, (30) and it remains possible that President Biden's administration could seek to have Title IX amended to extend its protections to prohibit discrimination on the basis of gender identity and sexual orientation. (31) Congress could take up the issue. (32)

This Article focuses on the NCAA's response to state laws regulating transgender athlete participation and its revisions to its own such policy, both of which provided it with an opportunity to support and protect its transgender student-athletes. (33) The NCAA failed to take advantage of these opportunities, however, as "[t]hough Thomas became the most notable trans athlete, she is part of a larger story about how the NCAA has fallen behind in creating a welcome environment for transgender athletes." (34) To explore how the NCAA arrived at--or fell to--this position, Part I describes the NCAA's governance and the principles on which it operates and details its history of using its economic influence to effect change to policies and symbols it found discriminatory. The next Part critiques the NCAA's passive reaction to states' attempts to regulate transgender athlete sports participation, a nonreaction that was especially surprising given the NCAA's history. Part III analyzes the NCAA's 2022 revisions to its policy on transgender student-athlete participation, which amounted to another missed opportunity to support its transgender student-athletes. A brief conclusion follows.

2. THE NCAA AND ITS HISTORY OF EFFECTIVE SOCIAL ACTIVISM

   The NCAA is the national governing body for college athletics and is comprised of member universities for which it promulgates rules and regulations. (35) Perhaps surprising to some, the NCAA also has a history of effectively influencing state politics. (36) In order to appreciate this history, it is necessary to understand the NCAA's governance structure and the missions, principles, and core values that have guided its decision making. Thus, this Part describes these items and then explores some occasions where the NCAA used its economic influence to address scenarios it found discriminatory.

   1. The NCAA & Its Core Values, Missions, & Positions Regarding Inclusion & Discrimination

   The NCAA is "big, national, the focus of media and public attention, and scrutinized by legislators." (37) The NCAA, a private association, describes itself as "a member-led organization" comprising over 1,000 colleges and universities. (38) Division I is the highest division in the NCAA's three-division structure. (39) Nearly half a million student-athletes compete in NCAA athletics every year. (40)

   1. NCAA Governance

      The NCAA's governance structure features legislative bodies that include individuals who work at member universities and volunteer to serve. (41) These legislative bodies, along with various committees, govern the NCAA's divisions and create policy. (42) Committees also manage respective sport playing rules, run championship events, manage student-athlete health and safety issues, and consider matters impacting women in athletics and opportunities for minorities. (43)

      The Board of Governors ("BOG") is the NCAA's premier governing body. (44) It features presidents and chancellors from universities in each of the three divisions, along with select leaders from other industries. (45) The BOG's responsibilities include "leading the NCAA and presiding over issues that affect the entire NCAA membership." (46) It participates in strategic planning for the NCAA, adopts and implements policies affecting core issues and other NCAA-wide matters, initiates and settles litigation, approves the NCAA's budget, and employs the NCAA president. (47) The NCAA's national office in Indianapolis employs hundreds of staff members, led by NCAA President Mark Emmert. (48)

      Division I has a Board of Directors that sets the overall strategic vision of the division and a Council that serves as the division's primary policy-making body. (49) In order to include "the student-athlete voice," the Council includes two members of Division I's Student-Athlete Advisory Committee and permits them to vote. (50)

   2. NCAA Core Values &amp...