Women’s sports group threatens to sue NCAA over inclusion of biological males in female sports

The Independent Council on Women’s Sport (ICONS) has threatened legal action against the NCAA for their inclusion of biological males in women’s sporting events.

"We write as attorneys on behalf of the Independent Council on Women’s Sports (ICONS), a network of current and former collegiate and professional women athletes and their families, to put you on official notice that your practice of allowing male athletes on women’s teams constitutes illegal discrimination against women on the basis of sex," a January 12 letter to the NCAA’s Office of Legal Affairs read.

"We hereby demand that you take direct and immediate action to establish rules to keep women’s collegiate sports female," the letter added.

The attorneys explained that it would be "impossible" to provide equal opportunities for both sexes in the world of college sports, as required by Title IX, "without female-only teams."

"Yet the NCAA implements and perpetuates a policy of allowing male athletes on women’s teams, even as sports governing bodies and federal courts increasingly reject these unjust and inequitable policies that exclude young women from their own teams," the letter stated.

"Female athletes do not accept this; nor do groups representing their interests such as ICONS and women’s rights groups across the political spectrum; nor do many parents, schools, states, governors, and lawmakers." 

The attorneys stated that ICONS, which has worked with various sports governing bodies and legislative authorities to "help them protect female athletes from discrimination and exclusion on the basis of their sex," is "willing and able to also share its expertise with the NCAA – if the NCAA wants to renew its commitment to providing equal opportunity for female athletes." 

They wrote that "the NCAA’s discriminatory policies and practices violate state and federal law, directly and proximately resulting in foreseeable and avoidable harms, damages, and losses to female athletes."

"The NCAA is not above the law," the attorneys added. "If you do not protect female athletes from discrimination on the basis of sex, we will embark on legal action to compel you to do so." 

To avoid legal action taken against them the attorneys directed the NCAA to "comply with civil rights law immediately" by repealing policies and rules allowing for the inclusion of biological males in women’s divisions, "establishing and enforcing rules o keep women’s sports female," and requiring NCAA colleges to provide single-sex locker rooms for female athletes. 

"The NCAA cannot pick and choose which laws to follow,” said Marshi Smith, an NCAA Champion and co-founder of ICONS, in a press release. "They must protect female athletes from discrimination on the basis of sex, or expect we will be forced to take legal steps to compel them to do so."

"We want to send a message to the NCAA that we are mobilizing to defend the rights of women and girls," said ICONS co-founder Kim Jones, an All-American and Pac-10 Champion. "We are thousands of athletes strong and we stand alongside parents, lawmakers, and organizations across the political spectrum. The NCAA has adopted discriminatory policies and broken the law, intentionally treating women and girls unjustly."

The letter was endorsed by a number of organizations including the Women’s Liberation Front, the Independent Women’s Forum, Women’s Declaration International USA, Alliance Defending Freedom, Women’s Sports Policy Working Group, Concerned Women for America, International Consortium on Female Sport, and Champion Women.

In January of 2022, the NCAA Board of Governors adopted updates to its transgender student-athlete participation policy, to be brought in in three phases. 

Phase one began during last year's winter and spring championships, with transgender athletes providing documentation to the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (CSMAS) to the Board of Governors "four weeks before the selections date for their championship."

Participation in phase one relies on the NCAA 2010 policy, which states that biological males should be on testosterone suppression treatment for at least one year, and include documentation showing a one-time testosterone level that falls below the maximum threshold for the sport.

Phase two, which began in August of 2022, states that transgender athletes should provide the documentation that meets the above requirements, as well as documented testosterone levels meeting the sport standard at the beginning of their competition season and again six months later.

To participate in NCAA championships, "transgender athletes must additionally provide documentation of testosterone levels to the CSMAS with laboratory work completed within four weeks of the championship selections."

Phase three, which begins on August 1, 2024, requires transgender athletes to provide documentation demonstrating that they meet sports-specific standards, to be submitted once at the beginning of the competition season and again six months later, to be done annually.

Transgender athletes will also be required to comply with the previous phases’ criteria for competing in NCAA championships.

"The Board of Governors urged the divisions to allow for additional, future eligibility if a transgender student-athlete loses eligibility based on the policy change, provided they meet the newly adopted standards," the rules state.

"Like the US Olympic and Paralympic Committee, the updated NCAA policy calls for transgender student-athlete participation for each sport to be determined by the policy for the national governing body of that sport. If there is no NGB policy for a sport, it would then be determined by the policy for that sport’s international federation. If there is no international federation policy, it would be determined by policy criteria previously established by the International Olympic Committee," the policy adds.