Authors

Erin Buzuvis

What's Wrong with the NCAA's New Transgender Athlete Policy?

Abstract

In 2022, the NCAA changed its long-standing policy permitting transgender athletes to participate in teams that correspond to their affirmed gender. For twelve years, the NCAA permitted transgender women to participate in women’s sports events under NCAA control, so long as they first underwent a year of androgen suppression. Starting in 2020, however, a political movement to ban transgender women and girls from competing in women’s sport, galvanized by backlash against a single collegiate swimmer, has challenged NCAA’s inclusive approach. Rather than demonstrate leadership and support for rights of transgender women to compete, the NCAA revised its policy to one that effectively passes responsibility to individual sports’ governing bodies, deferring to the eligibility criteria established by sport organizations for transgender women to compete in their respective sports.

After providing historical background on the NCAA’s approach to trans inclusion, and a detailed description of the policy it announced in January 2022, this Article critiques the NCAA’s new policy on several grounds. First, the policy lacks clarity about the degree to which the NCAA’s deference extends. At full implementation (beginning August 2023), the policy’s wording raises questions about whether the NCAA would defer to policies that use criteria other than a testosterone limit, and that would operate, not just to postpone an athlete’s participation, but exclude them altogether; and other ambiguities and uncertainties arise by virtue of the NCAA’s decision to defer to policies that were not developed with this deference in mind. Another set of criticisms arise by virtue of the NCAA’s purported justification of its policy as “align[ing] transgender student-athlete participation with the Olympic Movement.” Such alignment is neither necessary nor is it achieved by the NCAA’s policy. Finally, the NCAA’s deference policy could put NCAA member institutions at risk of excluding more athletes than is warranted as a matter of civil rights protected by Title IX and, for students at state universities, the Equal Protection Clause as well. For these reasons, the NCAA should take back control of its own policy. A sport-specific approach is not necessarily wrong. But eligibility criteria should be set with the unique values and context of NCAA and its educational-institution member institutions in mind. NCAA cannot outsource its navigation of the complexities and diversity of sport and gender; it must take responsibility for establishing and administering its own policies.

This abstract has been adapted from the author's introduction.

Repository Citation

Erin Buzuvis, What's Wrong with the NCAA's New Transgender Athlete Policy?, 29 Wm. & Mary J. Race, Gender, & Soc. Just. 155 (2022), https://scholarship.law.wm.edu/wmjowl/vol29/iss1/5