Joshua Haiar/South Dakota Searchlight
Governors criticizing an NCAA policy on transgender student athletes may put their universities at risk of “penalties or ramifications” if those institutions disobey the policy, according to a sports law scholar.
Joshua Lens is an assistant professor of recreation and sport management at the University of Arkansas, Fayetteville, who wrote an article on NCAA transgender sports participation for a recent edition of the Missouri Law Review.
“The NCAA is a private, voluntary organization,” Lens said. “It’s a club. Universities choose to belong to the NCAA. And when you join, they have rules, and they have a right to enforce those rules.”
The NCAA adopted a policy last year allowing transgender student-athlete participation to be determined by the policy for the national governing body of each sport. The policy is being implemented in three phases, with the final phase beginning next year.
On Monday, Gov. Kristi Noem and eight other Republican governors sent a letter to the NCAA’s Committee on Competitive Safeguards and Medical Aspects of Sports urging a rewrite of the policy. The governors want the NCAA to bar transgender women from women’s sports.
The governors argue that the NCAA policy fails to “protect, preserve, and encourage fairness in women’s athletics.”
The NCAA has said its sport-by-sport approach “preserves opportunity for transgender student-athletes while balancing fairness, inclusion, and safety for all who compete.”
Once fully implemented, the NCAA policy will require transgender student-athletes to provide documentation no less than twice annually to show they meet sport-specific standards, which can include testosterone level testing.
The organization’s new approach is more conservative than its previous policy, Lens said, which allowed transgender people to participate regardless of the sport.
The NCAA has previously shown a willingness to penalize states with anti-transgender laws. In 2016, the NCAA relocated championship events from North Carolina after the state passed a law requiring transgender people to use bathrooms that match the gender on their birth certificates. The law was later repealed.
State trans-athlete laws
Meanwhile, at least 23 states have adopted laws in recent years restricting transgender athletes’ participation in sports. South Dakota’s law, passed last year, bars transgender girls and women from participating in female sports.
Lens said South Dakota’s law supersedes the NCAA policy. The state law bars, for example, a transgender woman from playing on any NCAA women’s team in South Dakota, as well as any transgender women on out-of-state teams from competing in South Dakota. It does not stop South Dakota schools from competing against teams that include transgender women if the competition takes place in another state.
When asked if South Dakota’s law has been enforced against any athletes, Gov. Kristi Noem’s spokesperson, Ian Fury, said “not to my knowledge.”
The American Civil Liberties Union of South Dakota criticized the governors’ letter, describing it as “political grandstanding.”
Samantha Chapman, ACLU of South Dakota advocacy manager, said the letter isn’t about ensuring fairness in women’s sports. Instead, she suggests the governors should focus on “actual threats to women’s sports” such as “severe underfunding, lack of media coverage, sexist ideologies that suggest that women and girls are weak, and pay equity for coaches and players.”
“This letter to the NCAA is just another attempt to erase transgender people from society while stirring up support from their base of anti-trans activists,” Chapman said in a news release.
The other governors who signed the letter are Sarah Sanders of Arkansas, Tate Reeves of Mississippi, Mike Parson of Missouri, Greg Gianforte of Montana, Joe Lombardo of Nevada, Kevin Stitt of Oklahoma, Greg Abbott of Texas, and Mark Gordon of Wyoming.
Department of Education rule
Looming over the states’ dispute with the NCAA is a U.S. Department of Education rule proposed in April, which would supersede state laws.
The draft rule would allow schools to decide if transgender athletes can compete on teams matching their gender identity based on concerns of fairness and physical advantage, while outright bans on transgender student-athletes – like South Dakota’s ban on transgender girls and women in female sports – would be illegal.
The Department of Education has received more than 150,000 written public comments and has not yet released a final version of the rule, despite saying it planned to release the final rule in October.
Noem and 24 fellow governors criticized the rule proposal in a May letter.
“The proposed rule could prevent states from enforcing our duly enacted statutes protecting fairness in women’s and girls’ sports,” the governors wrote.
South Dakota Searchlight asked the athletic departments at South Dakota State University and the University of South Dakota if they’re concerned about potential NCAA ramifications from the state law. Neither university responded before the publication of this story.
The NCAA did not immediately respond to Searchlight questions.