Wednesday’s decision by the NCAA’s Board of Governors to update its transgender policy has been met with even more questions about what the new policy means for swimmers like Penn’s Lia Thomas who is on a collision course with the 2022 NCAA Women’s Swimming Championships. Thomas is expected to be the favorite in the 200-freestyle and 500-freestyle races.
The Board of Governors decided the new transgender policy should call for a “sport-by-sport approach” in which each sport will use the policy of its own national governing board to determine which rules a transgender athlete must follow in order to participate.
In the case of NCAA swimming, the first layer of governance on specific rules, such as testosterone levels, would fall to USA Swimming, then defer to the international swimming board (FINA) and then finally the NCAA would defer to the International Olympic Committees rules.
Dr. Emma Hilton, a developmental biologist from the University of Manchester, interprets the new NCAA policy as one that will ultimately mean “testosterone suppression is no longer required for inclusion of transwomen in female college swim teams.”
Hilton tweeted early Thursday that while the new NCAA rules do not directly say “no T suppression is necessary,” the biologist believes that’s exactly what the Board of Directors are saying with its policy shift that now pushes the rules off onto other governing boards.
“It’s the result of their new policy to devolve to the national board (no policy), then the international board (no policy), then the international board (no policy), then the IOC (no T suppression required),” Hilton, who is considered an expert on transgender women in female sports, continued.
To be clear (and perhaps fair): the NCAA haven’t directly said that no T suppression is necessary. It’s the result of their new policy to devolve to the national board (no policy), then the international board (no policy), then the IOC (no T suppression required).
— Emma Hilton (@FondOfBeetles) January 20, 2022
The Board of Governors said in a release that its new transgender policy would start effective with the 2022 winter championships. Swimming media outlet SwimSwam.com agreed with Hilton’s interpretation, that the new rules mean there is “now no testosterone suppression requirement, as neither FINA nor USA Swimming have published one.”
In a transgender athlete study released in December by the Macdonald-Laurier Institute, Hilton — along with Jon Pike, who specializes in the Philosophy of Sport, and Leslie Howe, who also studies Philosophy of Sport — wrote that “there is neither a medical intervention nor a clever philosophical argument that can make it fair for trans women to compete in women’s sport.”
The researchers argue that fairness in sports would be achieved by considering the male sports category “Open,” while biological female sports would be “Female” and refer to the sex as recorded at birth.
“For trans women who have successfully suppressed testosterone for 12 months, the extent of muscle/strength loss is only an approximately (and modest) -5% after 12 months,” Hilton and her fellow researchers write. “Testosterone suppression does not remove the athletic advantage acquired under high testosterone conditions at puberty, while the male musculoskeletal advantage is retained.”
Donna De Varona, an Olympic gold medalist swimmer and Title IX advocate, told Fox News this week that “trying to equate biology with gender identity does not work in the sports place.”
“It may work everywhere else. It may work before puberty. And there are some sports where there’s no barrier to entry, but Lia Thomas has been a lightning rod for this debate, and it’s time the NCAA and the national governing bodies — which control sport in this country, especially Olympic sport — and international federations to readdress this policy. We want fairness and safety in sport,” De Varona told Fox. “That’s what it’s all about.”
— America Reports (@AmericaRpts) January 18, 2022
Roger Brooks, who serves as senior counsel for the Alliance Defending Freedom, told OutKick that the NCAA’s policy shift is an “evasive action” that’s nothing more than a “duck and cover in response to the Lia Thomas outcry.”
Brooks represents high school and collegiate athletes who’ve brought Title IX cases in front of courts due to unfair competition against transgender athletes. He says the NCAA’s actions on Wednesday will not restore fairness to female college athletics.
“What Title IX requires is equality of athletic opportunities. Opportunities for achievement. Opportunities for victory,” Brooks told OutKick. “And we also believe Title IX in requiring equal opportunities requires equal safety opportunities. It’s really a laydown hand that males, as a starting point, after puberty have a vast advantage over women that thousands of men and teen boys will beat the performance of women in the world in event after event.
“What we’re now seeing is an increasing wave of published science over the last year or two that says that testosterone suppression can’t restore safety and fairness for women.
“The reality is the only solution consistent with science is to get back to that historic solution of what we believe Title IX requires.”
And by ignoring that historic solution, Brooks believes universities could ultimately pay the price in the courts.
“I do think colleges like the University of Pennsylvania that are letting this happen are violating Title IX and they should be held accountable and I do think there are good arguments that the NCAA itself is essentially an agent of its member colleges and is violating Title IX,” Brooks noted. “The law is not being complied with and we hope that in due course we’ll be able to correct that.”
When pressed on if this transgender policy and Title IX law ultimately meet in the Supreme Court, the veteran attorney didn’t even hesitate.
“I think the answer to that is ‘yes,’” he said, adding that the court cases are mounting and it’s likely there will be more cases to come. “The law is not fast but within the next couple of years we’ll see a case about this issue in front of the Supreme Court.”
But that timeline doesn’t take into account “the dam that is breaking,” as Brooks calls it. He points to Michael Phelps and Caitlyn Jenner giving their opinions on the Lia Thomas story along with pressure from coaching associations as proof that there might be changes outside the legal process.
“I’m encouraged what I’m hearing publicly from voices that nobody can accuse of being transphobic,” Brooks said.
When asked if athletes should resort to something such as walking out of a competition in protest, the attorney called such an idea “intriguing.”
While legal experts and scholars dive into where this all takes sports down the road, those competing with and against Thomas get to deal with this mess in real-time.
“When I have kids, I kinda hope they’re all boys because if I have any girls that want to play sports in college, good luck. [Their opponents] are all going to be biological men saying that they’re women,” one of Thomas’ Penn swimming teammates told OutKick in December.
Perhaps the young women competing against biological men like Thomas should be considered experts too.