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Saint Louis University Journal of Health Law & Policy

Document Type

Student Comment

Abstract

In recent years, dozens of bills restricting the rights of transgender, or trans, individuals have been introduced in state legislatures throughout the country. To date, ten states have successfully passed laws prohibiting trans athletes from competing on teams in accordance with their gender identities. For its athletes, the National Collegiate Athletic Association (NCAA), the United States’ largest intercollegiate athletic organization, has pursued a compromise to balance trans inclusion and fair competition. Established in 2011, the NCAA’s conditionally inclusive policy permits trans women—meaning those who were assigned the sex of male but identify as women—to compete on a women’s team only after undergoing one year of testosterone suppression. This constitutes a form of sex testing, a method long used by sports organizations worldwide to sort athletes into binary men’s and women’s teams. This Article critiques the NCAA’s policy under Title IX, a cornerstone of federal law that prohibits discrimination in educational settings “on the basis of sex.” Although the Supreme Court has yet to define the contours of this protection as it relates to trans student athletes, its recent trans-friendly ruling in the Title VII case Bostock v. Clayton County, Georgia may be indicative of a decision on the issue. Further, even without Bostock’s logic, the Court may find that in light of modern science, the NCAA’s selective testosterone regulation stands as an improper and overbroad application of Title IX’s competitive skill exception. Looking forward, this Article provides solutions that the NCAA may employ in a revised policy to satisfy Title IX and to champion trans inclusion.

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