Demonstrators protest NCAA's transgender athlete inclusion

Former Kentucky swimmer Riley Gaines led a group of about two dozen demonstrators outside the NCAA convention

Former Kentucky swimmer Riley Gaines and about two dozen demonstrators outside the NCAA convention Thursday protested the inclusion of transgender athletes in women's sports and threatened the association with legal action if it doesn't change its policies.

Gaines competed in last year's NCAA swimming and diving championships against Penn's Lia Thomas, who became first transgender woman to win a national title ( the women's 500-yard freestyle). She also placed fifth in the 200 freestyle, tying with Gaines.

“Today, we intend to personally tell the NCAA to stop discriminating against female athletes by handing them a petition that we have garnered nearly 10,000 signatures on in just a couple of days,” Gaines said, kicking off more than an hour of speeches that attracted a few onlookers and a handful of quiet counter-protesters.

The topic has divided the U.S. for the past several years, with critics saying transgender athletes have an advantage over cisgender women in competition. Eighteen states have passed laws banning transgender athletes from participating in female school sports; a federal judge earlier this month ruled West Virginia's ban is constitutional and can remain in place.

The NCAA has permitted transgender athletes to compete since 2010.

The Transgender Student-Athlete Participation Policy was updated a year ago, taking a sport-by-sport approach that brings the NCAA in line with the U.S. and international Olympic committees.

NCAA leadership says the stated goal in policy making is “not if transgender athletes are included, but how.”

“We want to have an environment that is fair, welcoming and inclusive for all of (the athletes),” Ivy League executive director Robin Harris said at the convention during a session this week on the topic. Harris said the transgender athletes policy is no different from other eligibility requirements.

“They are playing by the rules,” NCAA director of inclusion Jean Merrill said during the session.

Schuyler Bailar, a transgender man who switched from the women's swim team to the men's during his time at Harvard, said he believes the NCAA is doing the best it can to be inclusive, fair and effective with its policies. The challenge is that the standards are not static.

“It's just not that simple. I think they’re ever moving, ever evolving. And fairness is ever evolving, as well, the more we learn about bodies and biology and people and the more we understand diversity and equity and inclusion,” Bailar said at the convention session.

At the protest, Alliance Defending Freedom attorney Christiana Kiefer said the NCAA is violating Title IX, the landmark gender equity legislation enacted in 1972, and legal action against the NCAA could take several forms.

“So I think that could look like a federal lawsuit against the NCAA,” she said. “I think that could look like a Title IX complaint. And I think it could look like even universities starting to actually push back against the NCAA and saying, ’Hey, we have a legal obligation to protect fair athletic opportunities for female athletes and if we fail to do that, you’re kind of binding our hands and not allowing us to fulfill our legal obligations to the female athletes at our schools.'”

The NCAA has not yet taken a stand against states that have banned transgender athletes from competing in women's sports. The NCAA has previously banned states from hosting its championship events because of the use of Confederate symbolism or for laws that it believe discriminated against LGBTQ people.

Bailar said it would be valuable to have the NCAA take a similar position on this issue.

“I also know that NCAA's jurisdiction is in college athletics and not in children’s sports. And many of these laws are about children’s sports. So I understand the discrepancy there,” he said. “But I mean, if you’re asking me do I want more support for trans people? The answer is going to be: absolutely yes.”

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