College Athletes Are Pressuring the NCAA to Take Action Against Anti-Trans Sports Laws. Why Hasn’t It?
Cj Johnson didn’t want to quit field hockey, a sport they played for 12 years. But after they showed up 15 minutes late to practice in April and their coach chewed them out, using their deadname—a name they intentionally no longer go by after coming out as nonbinary—and urging their teammates to as well, they felt like they had no choice.
“It made me feel worthless,” says Johnson, a rising junior at Earlham College. (Earlham deferred comment to the coach, who is no longer at the school; through a lawyer, the coach denied Johnson’s allegations.)
What makes matters worse for Johnson, they say, is their belief that the NCAA has wavered in its support of people like them in the face of anti-trans sports bans sweeping the nation.
Illustration by Megan Laird
“It feels like we’re being erased. It almost feels like you’re being backstabbed, because it’s like you commit yourself to this organization and you absolutely love it,” they say. “You put your heart and your soul into sports, right? And then they just make decisions that backstab your people, your identity, your community.”
Johnson is referring to the NCAA’s decision in mid-May to schedule softball championship regional and superregional games for later that month in Alabama, Arkansas and Tennessee, which had all recently passed laws barring trans athletes’ participation in sports. The Arkansas law banned trans women and girls from competing in the category aligned with their gender identity, while the ones in Alabama and Tennessee simply banned all trans athletes. Those states are part of a wider legislative wave: over the last three months, Florida, Mississippi, Montana, South Dakota and West Virginia have passed their own, similar laws, joining Idaho, which passed one last year.
So far, NCAA leadership has adopted a hands-off approach to the new laws, some of which stand to conflict with the organization’s own rules on trans participation. Instead, the NCAA has put out carefully calibrated statements saying that athletes’ well-being is a priority and that it is “monitoring” the issue—but declining to explicitly condemn the laws or take any action against them.
That approach differs from the one the NCAA took five years ago, when conservative lawmakers led another legislative campaign against trans rights. Then, the NCAA drew a bright line, moving events—including basketball games—out of North Carolina in light of the state’s so-called “bathroom bill,” which prevented trans people from using public restrooms and locker rooms that aligned with their gender identity.
So what is different now? Many college athletes, both transgender and cisgender, have been asking this question, with hundreds of them signing onto a recent letter pressing the NCAA. Working with advocacy groups, athletes nationwide are seeking to turn up the heat on the governing body: With even its own rules being threatened, they want to know, why is the association refusing to take action?
Experts and longtime NCAA observers say that a combination of factors is at play, but it boils down to this: The risks—and stakes—are higher for the association in 2021.
“They’re in such a prime location to show like, ‘This is what accountability looks like. This is what allyship looks like,’ ” says Jen Fry, a former college athlete who has consulted with the NCAA on diversity issues. “And they didn’t do it right.”
NCAA president Mark Emmert has been under fire from all directions lately.
Robert Deutsch/USA Today Sports
Last year, Idaho passed the first in the series of bills nationwide that ban trans girls and women from playing women’s sports in K–12 schools and public colleges and universities. A preliminary injunction currently prevents it from being enforced as a lawsuit from the ACLU, trans runner Lindsay Hecox and a cisgender Jane Doe works its way through the courts. The bans have gone into effect just in South Dakota so far (where the governor signed an executive order), but, barring intervention from the courts, laws in six states are scheduled to take force in July.
In four of the states that have followed Idaho—Arkansas, Florida, Mississippi and West Virginia—the laws also apply to public colleges and universities, in addition to public K–12 schools. They stand to contradict the NCAA’s decade-old policy for participation that explicitly includes trans athletes, including trans women who have undergone hormone replacement therapy for at least a year.
In March, a group of nearly 550 collegiate athletes, including students from Duke, Ohio State, Michigan, Penn State, Villanova and Maryland, signed a letter to NCAA president Mark Emmert and the Board of Governors protesting the scheduling of events in states that have passed—or were considering passing—anti-trans sports bans. The letter was organized by LGBTQ+ sports advocacy group Athlete Ally and GLAAD.
In an April 12 statement on the issue, which the NCAA referred Sports Illustrated to when reached for comment, the organization wrote that its Board of Governors “firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports.” It continued by mentioning its trans inclusion policy and laid out: “Our clear expectation as the Association’s top governing body is that all student-athletes will be treated with dignity and respect.” The statement closes with a reminder that the NCAA will schedule championships in only locations that can provide an environment that’s “safe, healthy and free of discrimination.” A close reading of the NCAA’s statement suggests that, with most of the bans not yet in effect, it views these states as “safe” and “healthy” for all athletes. But those affected by the laws say that misses the point of how damaging their passage has been.
“It does not feel like [the NCAA has] done a whole lot,” says runner Aliya Schenck, a rising senior at Washington University in St. Louis and one of the organizers of the March letter. “A lot of these statements feel like they’re full of hot air.”
The NCAA announced its softball tournament schedule just a month after issuing that April statement. (A couple of weeks after that, Florida, another of the states selected for softball, signed an anti-trans sports bill into law.)
“I understand not moving existing schedules and whatever, but I don’t really understand actively adding other events when they could be added elsewhere,” says a graduating trans track and field athlete at a New England college who spoke under the condition of anonymity, out of fear of backlash. “That would be a safer environment, just like literally physically safer and also just mentally less toxic.”
In response to the softball announcement, 50 trans and nonbinary current and former college athletes, aided by Athlete Ally, wrote a letter in May to the NCAA protesting its scheduling of the softball events in affected states and pressuring it to take action to keep trans athletes safe. The NCAA replied, stating in part, “We are also concerned with the laws in several states and are tracking them and their pending effective dates closely.” An NCAA spokesperson declined to tell SI whether the organization is waiting for more of the bans to go into effect before taking any action against them, instead pointing back to the group’s April statement.
Says Johnson, who signed the letter from trans athletes: “I don’t think that [the NCAA has] our backs as much as they say they do. Sometimes it just feels performative.”
The NCAA is not new to responding to issues of discrimination. Since 2001, it’s declined to schedule championship events at schools that use offensive Native imagery or in states where governments fly the Confederate flag. And in ’16, they pulled events out of North Carolina. The Associated Press estimated in ’17 that the bathroom bill might have cost North Carolina $3.76 billion in lost business.
“My frustration is that [the NCAA has] had multiple opportunities to make a statement, to take action, to state their stance,” says Chris Mosier, an activist and Team USA trans duathlete. “And, you know, they have a lot of power in that. Many of these states rely on NCAA events to draw money and tourism and sports betting to their states, to their cities.” He adds, though, that since most of the bans have not taken effect yet, he believes there’s still time for the NCAA to adjust its stance.
But will it? The experts who spoke to SI aren’t sure. The governing body is balancing a lot of weighty issues right now, including COVID-19 protocols; name, image and likeness legislation; growing demands to pay athletes, especially following this week’s Supreme Court ruling; and the gender equity review it commissioned from an outside firm in March in response to a national outcry over the differences in conditions at the men’s and women’s basketball tournaments.
“They’re juggling flaming knives right now, and this is just another flaming knife that’s thrown into the mix,” says Gabe Feldman, a professor at Tulane’s law school who specializes in sports law.
The nature of the legislation and the debate surrounding it is also a factor. The North Carolina bathroom bill was limited to one state, which likely created less “internal strife” in the NCAA, says Timothy Davis, a Wake Forest Law professor specializing in sports law. While other states had attempted to pass bathroom bills, many had already failed by the time the NCAA acted, so it was effectively an isolated problem in a single state. Moreover, North Carolina was already facing widespread condemnation: Everyone from Bruce Springsteen to the NBA had already pulled events from the state by the time the NCAA made its move, six months after the bill went into effect.
In addition to the NCAA’s track record for moving cautiously, the difference in political climate between 2016 and ’21 can’t be overlooked, says Ashland Johnson, founder of The Inclusion Playbook, a sports consultancy that works with teams and leagues, including the NCAA, on diversity issues. With the nation more polarized now than even five years ago and Republicans from the top down seeking to make trans participation in sports a wedge issue heading into 2022, Johnson says, organizations—whether big companies or sports leagues—are more hesitant to weigh in.
The North Carolina bill was also clearly anti-trans, while this nationwide push is more nuanced and “covert,” Fry says, because it’s ostensibly an earnest debate about fairness in women’s athletics as opposed to an outright attack. The science around trans athletes is slim and unsettled—it has not been proved that trans girls and women, who at higher levels of competition are required to go through hormone therapy, retain any advantage over their cisgender peers. And lawmakers pushing through these bills can hardly point toward examples, outside of a case in Connecticut, where trans athletes’ participation in sports has created controversy. The NCAA’s existing policy on trans participation has been administered more or less without controversy for the last 10 years. This time around, though, big-name brands and entertainers aren’t lining up to fight.
“I think that [debate over fairness in women’s sports] may be muddying the waters, where in my mind, the water should be clear that these state laws are regressive and discriminatory and do not appear to serve any legitimate purpose,” Feldman says. “So I think, ultimately, one would have hoped the NCAA would have backed up its statement and its previous actions by at least attempting to move some of these events out of states that have these laws or at least not put new events in these states.”
Johnson, of The Inclusion Playbook, says that if the NCAA were following its own anti-discrimination policy, it would be an easy decision. She also says that she believes by not acting to enforce its policy, the NCAA is doing more harm than good.
“You have to be willing to enforce it, because when you don’t, it undermines people’s faith in the work that you’re doing,” Johnson says. “It sends a message to people that it’s not that we’re not aware that this is discrimination; we just don’t believe it’s discrimination.”
Johnson says the NCAA’s June 2020 statement after Idaho passed the first anti-trans bill was promising—and then the pandemic took care of the issue, forcing cancellations of scheduled championship events in the state.
Feldman says that in recent years, the NCAA has made “a genuine, sincere, concerted effort to improve on equity issues, race, gender, transgender issues.” He adds, “They’ve not gotten it all right, clearly, but I do think they are at least moving in the right direction.” Still, on a hot-button issue like trans participation, the decision of whether to cancel championships likely comes down to the political and economic interests of the Board of Governors and member institutions.
“The NCAA governing bodies are comprised of presidents and chancellors and athletic directors from schools in all 50 states,” Davis says. “And so a good number of those individuals reside in states that have passed this type of legislation.”
Hecox, who hopes to run for Boise State, has joined the ACLU in suing Idaho to overturn the law barring her participation.
Kohjiro Kinno/Sports Illustrated
Natalie Fahey, who signed the May letter, almost stopped swimming when she transitioned during her collegiate career at Southern Illinois University–Carbondale, but she kept at it, she says, because swimming has saved her life during rough patches. She thinks the NCAA can be doing much more to support trans athletes.
“I know that it is difficult to solicit change and significant action quickly in such a large organization,” she says. “I’m very hopeful that more action will be taken, hopefully sooner rather than later, but that certainly won’t stop me from doing my best to encourage them along.”
Jordan Keesler almost called it quits as well, coming close to nearly turning in their softball jersey several times over their three-year college career at Agnes Scott College. Had these anti-trans laws been in place when they were in school, they likely would’ve followed through.
“I wouldn’t have felt comfortable going or felt safe [traveling to states with anti-trans bans],” they say. Road trips were already fraught for them as is, since they had to share a bus with a teammate they found violent and threatening.
Keesler, who is in graduate school at Georgia State University studying transmasculine athletes’ experiences with gender, feels the NCAA doesn’t prioritize athletes’ opinions—let alone those of trans athletes—in its decision-making.
“I’ve been to a few conferences that the NCAA has hosted, and it’s primarily coaches and public officials,” they say. “And it’s never our voices or our opinions or our experiences being centered. It’s all about what coaches can do. And I think that they miss what the actual experiences of athletes are.”
Moving forward, transgender athletes, along with their cisgender counterparts and other activists and allies, still have work to do, says Anne Lieberman, the Athlete Ally director of policy and programs. Lieberman says they want to see athletes ratchet up pressure on their school administrations and conference heads, potentially by refusing to travel to states with the bans in place in the fall, but no firm actions are planned at the moment.
Meanwhile, as the fight continues in Idaho over its law’s constitutionality, the ACLU has also sued West Virginia over its sports ban—which the Justice Department has called unconstitutional—while threatening to sue other states, as well. West Virginia’s law is scheduled to go into force on July 8 while Alabama, Florida, Mississippi and Montana are set for July 1 and Arkansas for July 28, making the choice for the NCAA to implicitly support or outwardly oppose the bans even more complicated come the fall.
“They’re going to really have to think about the excuse they use,” Lieberman says. “This time essentially was, well, the laws haven’t gone into effect in some of these states. But so now what are they going to say when laws have gone into effect?”
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