By: Allison Gloss

Every person deserves the right to play sports in a way that respects their health, safety, and dignity and without discrimination. At the same time, the credibility of competitive sports relies on the existence of level playing field, where no athlete has an unfair and disproportionate advantage over the rest. The issue of transgender athletes participating in sports has been a hotly debated topic in recent days, and the International Olympic Committee as well as the NCAA have issued new frameworks for fairness and inclusion within their organizations.

Under the Equal Protection Clause of the U.S. Constitution and Title IX, schools are prohibited from discriminating against students based on sex. State and federal courts have interpreted that this prohibition as encompassing discrimination based on gender stereotyping, including discrimination against individuals because of their gender identity or expression. Many states have taken steps to prohibit transgender athletes from competing in school sports, which often applies to college athletics.

In accordance with the Equal Protection Clause and Title IX, the NCAA has shifted their policies on transgender participation in competitive sports. On January 19, 2022, the NCAA Board of Governors voted in support of a sport-specific approach to transgender participation that preserves opportunity for transgender participation student-athletes while balancing fairness, inclusion, and safety for all who compete. The new policy aligns transgender student-athlete participation for college sports with recent policy changes from the United States Olympic and Paralympic Committee and International Olympic Committee.

Similar to the International Olympic Committee, the new NCAA policy calls for transgender participation for each sport to be determined by the respective policy for the national governing body of that sport, subject to continuous review and recommendation by the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports to the Board of Governors. If there is no national governing body policy for a sport, that sport’s international federation policy, namely previously established IOC policy criteria, should be followed.

The NCAA Board of Governors urged the divisions to provide flexibility to allow for additional eligibility if a transgender student athlete loses eligibility based on the policy change, provided they meet the newly adopted standards. Starting with the 2022 winter championships, transgender student athletes will need to document sport-specific testosterone levels beginning four weeks before their sport’s championships selections. Starting with the 2022-23 academic year, transgender student athletes will initially need to submit documented hormone levels at the beginning of their season, and do so again six months later. They will also need documented testosterone levels four weeks before championship selections.

The University of Pennsylvania’s Lia Thomas, a transgender woman, is on track to qualify for the national championships in swimming, having posted the best times in the 200-yard and 500-yard women’s freestyle events. If she satisfies USA Swimming’s requirements, the updated NCAA policy would allow Thomas to compete in the women’s swimming and diving championships which will begin on March 16th.

Because 80% of U.S. Olympians are either current or former college athletes, the NCAA hopes that this policy alignment will allow for consistency and further strengthen the relationship between college sports and the U.S. Olympics.

Allison (she/her) is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Following graduation, she plans to practice as a zoning and land use attorney in the Phoenix area. In this role, Allison is passionate about advocating the effects that zoning laws have on those experiencing homelessness. She hopes to assist in expanding the number of beds in homeless shelters to allow more places of refuge during the extreme heat of the summer months. Her personal interests include traveling, music festivals, skiing, and searching for the best happy hour spots in town.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.