Does the NCAA's transgender student-athlete policy violate Title IX?

Plain-English summary

The chair of a Texas Senate committee asked whether the National Collegiate Athletic Association's transgender student-athlete policy violates Title IX of the Education Amendments of 1972. At the time of this December 2021 opinion, the NCAA policy (from its 2011 transgender handbook) provided that a trans female athlete being treated with testosterone-suppression medication could compete on a women's team after completing one calendar year of that treatment, that a trans male athlete who received a medical exception for testosterone could compete on a men's team, and that an athlete not taking hormone treatment participated according to assigned birth gender.

The AG concluded a court would have a basis to conclude that a transgender-athlete policy like the NCAA's discriminates on the basis of sex in violation of Title IX. The reasoning: Title IX bars sex discrimination in federally funded education programs, and its athletics regulations have long allowed sex-separated teams. One purpose of that separation, the AG said (citing Cohen v. Brown Univ. and other cases), is to ensure women are not disadvantaged, because in athletics biological sex is a highly relevant characteristic and courts have recognized female competitors are at a physical disadvantage against male counterparts (Clark v. Ariz. Interscholastic Ass'n). The NCAA policy assumes a period of testosterone suppression eliminates male physical advantages; the AG asserted that some scientific studies dispute that and find a retained advantage. If biological males keep a physical advantage after suppression, the AG reasoned, letting them compete against biological females denies the females equal athletic opportunity, a disadvantage based on sex that the policy applies to women's teams but not men's.

The opinion is careful about where that conclusion does and does not reach. First, the NCAA itself is a private organization and, under Nat'l Collegiate Athletic Ass'n v. Smith, is not amenable to a private Title IX lawsuit just because it receives dues from federally funded members. So any Title IX exposure runs to the colleges and universities that enforce the policy, not the NCAA. Second, the federal picture was in flux: the Department of Education issued January 2021 guidance saying separate teams must be split by biological sex, then reversed course within six months with a Notice of Interpretation reading Title IX to cover gender identity, relying on the Supreme Court's Bostock decision. The AG emphasized that Bostock expressly limited its holding to Title VII employment, and that no U.S. Supreme Court, Fifth Circuit, or Texas court had extended it to Title IX athletics (while noting some courts outside the Fifth Circuit had extended Bostock to Title IX in other contexts, like Grimm v. Gloucester Cnty. Sch. Bd.).

Finally, the AG declined to resolve the ultimate questions as a matter of law. Whether a particular university discriminates in violation of Title IX, and how a court would treat an NCAA penalty imposed on a university over the policy, both require case-by-case fact-finding beyond the scope of an AG opinion (citing JC-0027). On the related question of whether universities must comply with NCAA policies, the AG explained that NCAA membership is voluntary, but the NCAA enforces its rules through its Committee on Infractions and can penalize member schools (with reprimands, fines, vacated records, scholarship reductions, and postseason or television bans), and the AG was not aware of any NCAA penalty imposed over the transgender policy.

A note on currency: this is the AG's 2021 legal position, issued while the federal interpretation of Title IX was actively shifting. AG opinions are persuasive, not binding, and the scientific assertions are the AG's, drawn from the cited sources. Federal Title IX regulations and the NCAA's own transgender policy have changed since 2021. Treat this page as a record of what KP-0396 said, not as current law.

What this means for you

This section describes what the opinion holds for each group as of its 2021 issuance. It is not current legal advice; the federal rules and NCAA policy have changed since.

Colleges and universities

The opinion's Title IX exposure runs to schools, not the NCAA. The AG took the position that a school enforcing a policy a court finds violates Title IX could itself be found in violation. Whether that happens depends on case-by-case fact-finding the AG did not perform.

Athletic directors and compliance staff

The opinion describes the tension the AG saw between the NCAA policy and Title IX's purpose of protecting women's athletic opportunities, and notes the conflicting federal guidance (the January 2021 memo versus the mid-2021 Notice of Interpretation). It does not resolve which controls; that was unsettled and has since changed.

Student-athletes and advocates

The opinion is the AG's legal interpretation, not a court ruling or a binding rule. It acknowledges courts outside the Fifth Circuit had extended Bostock to Title IX in some contexts, and that the science the AG cited is contested. Anyone affected should check the current federal Title IX rules and NCAA policy.

Common questions

Q: Did the AG say the NCAA transgender policy is illegal?
A: The AG concluded a court "would have a basis to conclude" the policy discriminates on the basis of sex under Title IX. That is the AG's legal view, not a binding ruling, and the AG left the ultimate question for case-by-case fact-finding.

Q: Can the NCAA be sued under Title IX over this?
A: The opinion says no, not by a private plaintiff. As the Supreme Court held in Nat'l Collegiate Athletic Ass'n v. Smith, the NCAA's receipt of dues from federally funded members does not bring it within Title IX. The exposure the AG described runs to colleges and universities.

Q: Doesn't the Supreme Court's Bostock decision settle it?
A: The AG said no. Bostock held that anti-transgender discrimination is sex discrimination under Title VII employment law and expressly declined to decide other statutes. The AG noted no Supreme Court, Fifth Circuit, or Texas court had extended it to Title IX athletics.

Q: Do universities have to follow NCAA policies?
A: NCAA membership is voluntary, but the AG explained the NCAA enforces its rules and can penalize member schools through its Committee on Infractions (fines, vacated records, scholarship cuts, postseason bans, and more).

Q: Is this still the law?
A: This is a 2021 opinion issued amid shifting federal guidance. Federal Title IX regulations and the NCAA's policy have changed since. Verify current law before relying on any point here.

Background and statutory framework

Title IX (20 U.S.C. §§ 1681–1688) bars sex discrimination in federally funded education programs, and its athletics regulation (34 C.F.R. § 106.41(a)) addresses interscholastic and intercollegiate athletics. The Department of Education enforces Title IX and a private right of action also exists (Davis v. Monroe Cnty. Bd. of Educ.). The AG relied on Nat'l Collegiate Athletic Ass'n v. Smith for the point that the NCAA is not itself subject to a private Title IX suit, and described the NCAA's structure and enforcement using Nat'l Collegiate Athletic Ass'n v. Alston, Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, and Nat'l Collegiate Athletic Ass'n v. Tarkanian, all Supreme Court decisions.

On the merits, the AG read Title IX's purpose to protect women's athletic opportunity (N. Haven Bd. of Educ. v. Bell; Cohen v. Brown Univ.; Clark v. Ariz. Interscholastic Ass'n), and contrasted the athletics context with employment, where Bostock applied. It noted the Department's conflicting January 2021 memo and mid-2021 Notice of Interpretation (86 Fed. Reg. 32637-01), state laws like Texas H.B. 25 (to be codified at Education Code section 33.0834, limited to school-district teams) and Idaho's Fairness in Women's Sports Act (enjoined in Hecox v. Little), and Texas's adoption of NCAA rules in Civil Practice and Remedies Code section 131.002. It declined the ultimate Title IX questions as fact-bound (JC-0027).

Citations and references

Statutes and regulations:

• 20 U.S.C. §§ 1681–1688 (Title IX of the Education Amendments of 1972)
• 34 C.F.R. § 106.41 (athletics under Title IX)
• Tex. Educ. Code § 33.0834 (school-district athletics by biological sex)

Key cases:

• Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459 (1999) (NCAA not subject to a private Title IX suit on the basis of member dues)
• Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (anti-transgender discrimination is sex discrimination under Title VII employment law; limited to that context)
• Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996) (Title IX athletics purpose of not disadvantaging women)
• Clark v. Ariz. Interscholastic Ass'n, 695 F.2d 1126 (9th Cir. 1982) (recognizing physical disadvantage for female competitors against males)
• Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) (extending Bostock to a Title IX restroom context outside the Fifth Circuit)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0396
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0396.pdf

Original opinion text

December 20, 2021

The Honorable Charles Perry
Chair, Senate Committee on Water, Agriculture & Rural Affairs
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0396

Re: Whether the NCAA's policies on transgender student-athletes violate Title IX (RQ-0414-KP)

Dear Senator Perry:

You ask whether the National Collegiate Athletic Association ("NCAA"), through enactment of its transgender student-athlete policies, has violated Title IX of the Education Amendments of 1972.¹

The NCAA promulgates and enforces rules for the administration of collegiate athletic programs.

The NCAA is a private organization composed of approximately 1,100 member schools, including virtually all public and private universities and four-year colleges conducting major athletic programs in the United States.² See Nat'l Collegiate Athletic Ass'n v. Alston, 141 S. Ct. 2141, 2150 (2021). The organization plays a significant role in the regulation of amateur collegiate sports. Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 88 (1984). The NCAA has adopted and promulgated rules of play, standards for academic eligibility, regulations concerning recruitment of student athletes, and rules governing the size of athletic squads and coaching staffs.³ Id. By joining the NCAA, each member school "agree[s] to administer their athletics program in accordance with the constitution, bylaws and other legislation of the Association." NCAA Const. art. 3.2.4.1.;⁴ see Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 183–84 (1988). The NCAA's bylaws provide that its enforcement program shall be administered by a Committee on Infractions, which supervises an investigative staff, makes factual determinations concerning alleged rule violations, and exercises authority to impose appropriate penalties on a member found to be in violation. NCAA Bylaws, art. 19, §§ 19.01–.13, NCAA Manual at 358–88.

¹ See Letter from Honorable Charles Perry, Chair, Senate Comm. on Water, Agric. & Rural Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 21, 2021).

² NCAA, Overview, https://www.ncaa.org/overview.

³ In 1987, the Seventieth Texas Legislature enacted chapter 131 of the Civil Practice and Remedies Code, which created an action for damages by a public or private university against an individual who violates a rule of the NCAA if the violation results in disciplinary action taken by the NCAA. See Act of 1987, 70th Leg., R.S., ch. 1065, § 1, 1987 Tex. Gen. Laws 3598, 3598–99. In doing so, the Legislature expressly "adopted" the "rules of each national collegiate athletic association in effect on January, 1, 1987." TEX. CIV. PRAC. & REM. CODE § 131.002.

⁴ NCAA 2021–2022 Division I Manual at 13 (effective Aug. 1, 2021) ("NCAA Manual").

The NCAA has adopted a transgender policy that allows certain transgender athletes who have received medical intervention to participate in sex-separated sports activities other than in accordance with their biological sex.

Your questions ask specifically about the NCAA transgender policy. Request Letter at 1. That policy is detailed in a handbook titled NCAA Inclusion of Transgender Student-Athletes.⁵ The NCAA transgender policy provides:

1. A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone for diagnosed Gender Identity Disorder or gender dysphoria and/or Transsexualism, for purposes of NCAA competition may compete on a men's team, but is no longer eligible to compete on a women's team without changing that team status to a mixed team.

2. A trans female (MTF) student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism, for the purposes of NCAA competition may continue to compete on a men's team but may not compete on a women's team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.

Transgender Handbook at 13. In addition, the policy provides that a "transgender student-athlete who is not taking hormone treatment related to gender transition may participate in sex-separated sports activities in accordance with his or her assigned birth gender." Id. You ask whether this policy violates Title IX. Request Letter at 1.

⁵ NCAA OFFICE OF INCLUSION, NCAA Inclusion of Transgender Student-Athletes (Aug. 2011) ("Transgender Handbook").

Title IX prohibits discrimination on the basis of sex in any education program or activity receiving federal funding.

Title IX is a federal law passed as part of the Education Amendments of 1972. See Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235 (codified as amended at 20 U.S.C. §§ 1681–1688). Congress's purpose in passing Title IX was to address significant concerns about discrimination against women in education. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523–24 (1982). The statute provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). A "program or activity" includes "all of the operations of . . . a college, university, or other postsecondary institution, or a public system of higher education . . . any part of which is extended Federal financial assistance." Id. § 1687(2)(A).

While the text of the statute itself does not speak to athletic programs, the regulations implementing Title IX have long addressed them:

No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

34 C.F.R. § 106.41(a).

The U.S. Department of Education (the "Department") is charged with promulgating regulations implementing Title IX and ensuring that recipients of federal financial assistance do not discriminate on the basis of sex in any educational program or activity. See 20 U.S.C. §§ 1681–1688; 34 C.F.R. §§ 106.1, 106.3(a). In addition to the funding aspect of Title IX enforced by the Department, a plaintiff may enforce Title IX through a private right of action for damages. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 639 (1999).

Relevant to your first question, the United States Supreme Court has concluded that the NCAA itself is not amenable to a private right of action under Title IX. Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 462 (1999) (concluding the NCAA's receipt of dues from federally funded member institutions does not suffice to bring it within the scope of Title IX). However, to the extent a court determines that an NCAA policy imposed by a college or university violates Title IX, a college or university enforcing that policy could be found in violation of Title IX.

A court would have a basis to conclude that the transgender athlete policy adopted by the NCAA discriminates on the basis of sex.

You ask whether the NCAA discriminates on the basis of sex through its transgender policy. See Request Letter at 2. Answering your question requires analysis of both federal and state law, as well as judicial decisions, and legal commentators have recently recognized that those laws often conflict and pose significant risk for athletic departments of colleges and universities faced with this issue. See Martin D. Edel & Yara Kass-Gergi, Making the Roster: Conflicting Title IX Interpretations Present Challenges for Transgendered Athlete Participation, XI Nat'l L. Rev. 176 (June 25, 2021).⁶ The divergent positions taken by the Department within the past year highlight this conflict.

In early January of 2021, the Department issued guidance regarding its construction of Title IX, advising that "if a recipient chooses to provide 'separate teams for members of each sex' . . . , then it must separate those teams solely on the basis of biological sex, male or female, and not on the basis of transgender status . . . , to comply with Title IX."⁷ The Department, in that guidance, recognized

one of Title IX's crucial purposes is protecting women's and girls' athletic opportunities. Indeed, Title IX was enacted, and its regulations promulgated, to prohibit discrimination on the basis of sex in education programs and activities and to protect equal athletic opportunities for students who are biological females, including by providing for sex-segregated athletics.

Dep't Memorandum of Jan. 8, 2021, at 7. Less than six months later, the Department issued a Notice of Interpretation regarding Title IX that reversed course on the position taken earlier in the year, advising that "the Department interprets Title IX's prohibition on discrimination 'on the basis of sex' to encompass discrimination on the basis of sexual orientation and gender identity." 86 Fed. Reg. 32637-01. It further advised that the Department's Office of Civil Rights will "fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department." Id.⁸

⁶ Available at https://www.natlawreview.com/article/making-roster-conflicting-title-ix-interpretations-present-challenges-transgendered.

⁷ U.S. DEP'T OF EDUC., OFFICE OF THE GEN. COUNSEL, Memorandum for Kimberly M. Richey, Acting Assistant Sec'y Gen. for the Office of Civil Rights at 8 (Jan. 8, 2021) ("Dep't Memorandum of Jan. 8, 2021").

⁸ Multiple states, including Texas, have passed legislation generally prohibiting students from competing in athletic competitions designated for the biological sex opposite a student's biological sex. See Act of Oct. 17, 2021, 87th Leg., 3d C.S., H.B. 25, § 3 (to be codified at TEX. EDUC. CODE § 33.0834). The recently-enacted Texas law was adopted for the express purpose of "promoting equality of athletic opportunity between the sexes under Title IX of the Education Amendments of 1972." Id. § 1(2). However, it applies only to teams "sponsored or authorized by a school district or open-enrollment charter school," and it does not address athletics at the collegiate level. Id. § 3. In March 2020, Idaho enacted a similar statute, the Fairness in Women's Sports Act. IDAHO CODE ANN. §§ 33-6201–33-6206. A federal district court granted a preliminary injunction enjoining the State of Idaho from enforcing the law on the grounds that the plaintiffs are likely to succeed on equal protection claims that the statute is unconstitutional, but that case is pending on appeal to a higher court. Hecox v. Little, 479 F. Supp. 3d 930, 987–88 (D. Idaho 2020); Hecox v. Little, No. 20-35813 (9th Cir. filed Sept. 17, 2020).

The Department issued its recent Notice "in light of the Supreme Court's decision . . . in Bostock v. Clayton County," which concluded that discrimination against a person for being transgender is discrimination "on the basis of sex" in the limited context of Title VII employment cases. Id.; 140 S. Ct. 1731, 1753–54 (2020) ("The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination . . . . But none of these laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today."). Despite the U.S. Supreme Court expressly limiting the application of its holding to Tile VII, the Department construed it to extend to Title IX, stating that "courts rely on interpretations of Title VII to inform interpretations of Title IX." 86 Fed. Reg. 32637-01.⁹

⁹ Multiple federal courts outside the Fifth Circuit have extended the holding in Bostock to the Title IX context. See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616–17 (4th Cir. 2020) (finding a policy that prohibited a transgender male from using the male restroom discriminated against a student in violation of Title IX); Adams v. Sch. Bd. of St. Johns Cnty., 318 F. Supp. 3d 1293, 1325 (M.D. Fla. 2018) (same); B.P.J. v. W. Va. State Bd. of Educ., No. 2:21-cv-00316, 2021 WL 3081883, at *7 (S.D. W. Va. 2021) (concluding that a biologically male student demonstrated a likelihood of success on the merits of Title IX claim when excluded from participation on a female sports team).

Neither the U.S. Supreme Court, the Fifth Circuit Court of Appeals, nor any Texas court has extended the holding in Bostock to the Title IX context. And the factual circumstances at issue in that case are largely distinguishable from a Title IX issue involving sex-segregated athletic competitions. One of the purposes of Title IX is to ensure that the segregated allocation of athletic opportunities does not disadvantage women. See Cohen v. Brown Univ., 101 F.3d 155, 176–77 (1st Cir. 1996); Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 175–76 (3d Cir. 1993). In contrast to the employment and admissions contexts, in the athletics context, biological sex is a highly relevant characteristic. See Cohen, 101 F.3d at 178. Courts have long recognized that female competitors are at a physical disadvantage when required to compete against their male counterparts. See Clark v. Ariz. Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th Cir. 1982). The NCAA transgender policy assumes that a brief period of testosterone suppression will eliminate male physical advantages over women; however, some scientific studies dispute that assumption and recognize the ongoing physical advantage biological males have over biological females following testosterone suppression.¹⁰

¹⁰ Joanna Harper et. al, How Does Hormone Transition in Transgender Women Change Body Composition, Muscle Strength and Haemoglobin?, 55 BRITISH JOURNAL OF SPORTS MEDICINE 865, 870 (2021); see also David J. Handelsman, Sex Differences in Athletic Performance Emerge Coinciding with the Onset of Male Puberty, 87 CLINICAL ENDOCRINOLOGY 71 (2017).

To the extent that biological males retain a physical advantage over biological females, permitting them to compete against biological females disadvantages the biological females. Allowing such competitions denies biological females equal athletic opportunities to their biological male counterparts, contrary to the purposes of Title IX. And that disadvantage is based on sex, in particular the physiological differences between sexes, which the NCAA policy ignores for female sex-segregated teams but not for male sex-segregated teams. In such circumstances, a court would have a basis to conclude that requiring a biological female to compete against a transgender female in an athletic competition discriminates against the biological female on the basis of sex. Whether a university discriminates on the basis of sex in violation of Title IX must be analyzed on a case-by-case basis after fact finding, which is beyond the scope of an Attorney General opinion. See Tex. Att'y Gen. Op. No. JC-0027 (1999) at 3 (explaining that whether discrimination in violation of a federal law occurs involves questions of fact, which cannot be addressed in an Attorney General opinion).

The NCAA may penalize universities that do not comply with its constitution, bylaws, and rules.

You also ask whether universities are required to comply with NCAA policies. Request Letter at 2. As discussed above, the NCAA is a private organization, and membership in the NCAA is voluntary. See Tarkanian, 488 U.S. at 183, 196. Member universities that do not comply with the NCAA constitution, bylaws, and rules may receive penalties for noncompliance. The NCAA regularly enforces its constitution, bylaws, and rules by imposing sanctions against member schools who do not comply. See NCAA Bylaws, art. 19, §§ 19.01–.13, NCAA Manual at 358–88 ("Infractions Program"). The NCAA separates schools into divisions based on the size of school and scope of athletic program, and each division has a Committee on Infractions, made up of representatives from member schools and conferences and members of the general public with legal training. Id.; see also Bd. of Regents of Univ. of Okla., 468 U.S. at 89. These committees conduct hearings and impose penalties for infractions. Penalties include public reprimand and censure, fines, vacating winning records, reducing scholarship allowances, bans on postseason competition, and bans on televised contests. We are not aware of any NCAA action taken to penalize a college or university related to compliance with the NCAA transgender policy. How a court would determine whether a violation of Title IX occurred if the NCAA imposed penalties against a university must be analyzed on a case-by-case basis after fact finding, which is beyond the scope of an Attorney General opinion. See Tex. Att'y Gen. Op. No. JC-0027 (1999) at 3.

S U M M A R Y

The National Collegiate Athletic Association has adopted a policy that allows certain transgender athletes who have received medical intervention to participate in sex-separated sports activities other than in accordance with their biological sex. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal funding. A court would have a basis to conclude that a transgender athlete policy like that adopted by the NCAA discriminates on the basis of sex in violation of Title IX.

Membership in the NCAA is voluntary, but the NCAA may penalize member schools that do not comply with its constitution, bylaws, and rules. How a court would determine whether a violation of Title IX occurred if the NCAA imposed penalties against a university must be analyzed on a case-by-case basis after fact finding, which is beyond the scope of an Attorney General opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee