The Right to Play: NCAA v. Florida's New Transgender Student-Athlete Bill

BY: HANNAH VALENTE

Throughout history, schools at every level have learned to appreciate the necessity of both accommodating and encouraging sports participation from previously underrepresented groups. This has been done to include students of color, women, and students with disabilities in the past. Today, at the forefront of political and social debates, are the rights of transgender students to participate in sports. Several states have enacted bills that ban transgender student-athlete participation which directly clashes with the National Collegiate Athletic Association’s affirmation of their commitment to inclusion and gender equity. As the number of students who identify as transgender has risen across the United States, so too has the discussion of whether to permit transgender student-athletes to participate in sports that coincide with their gender identity rather than their assigned sex at birth. Eight states (Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, Tennessee, West Virginia) have enacted laws that restrict transgender athletes at all levels of participation as of this year.

In the NCAA’s Inclusion of Transgender Student-Athlete’s resource, the NCAA sought to provide practice and policy recommendations for transgender student-athletes “with fair and equal opportunities to participate.”[1] This past April, the NCAA Board of Governors publicly backed transgender student-athletes by claiming that it will not hold collegiate championship events in locations that aren’t free of discrimination.[2] The NCAA, stated that it “firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports.”[3]

Florida has been at the nucleus of the debate between banning transgender student-athlete participation and the NCAA commitment to inclusion. On June 1, Republican Governor Ron DeSantis of Florida signed the “Fairness in Women’s Sports Act” which requires public schools and universities to have student-athletes compete according to their sex assigned at birth, not according to their gender identity. The bill states that “an athletic team or sport that is designed for females, women, or girls may not be open to students of the male sex, based on the student’s biological sex listed on the student’s official birth certificate at the time of birth.” [4] After signing the bill, DeSantis exclaimed: “In Florida, girls are going to play girl sports and boys are going to play boys sports.”[5] The bill is currently being challenged in Florida Federal Court by a plaintiff, “D.N.”, a thirteen year old soccer player. The lawsuit claims that the “Fairness in Women’s Sports Act” does not focus on overall fairness for women’s athletics, but rather violates Title XI protections for women’s sports and is unconstitutional.

DeSantis, is determined to defend this bill as evident by his comments stating, “We will stand up to groups like the NCAA who think that they should be able to dictate the policies in different states. Not here, not ever.”[6]

Two months, after DeSantis signed the “Fairness in Women’s Sports Act”, The NCAA Board of Governors convened on August 3, 2021, and reaffirmed the Association’s policy which is “to provide fair and nondiscriminatory championships opportunities to all student-athletes, including transgender college athletes.”[7] The NCAA further stated that “Any host who cannot commit to the nondiscrimination policy should contact the NCAA immediately.” This policy, and what could be viewed as a threat, to bar future states from hosting future championships, has not stopped states from passing legislation outlawing transgender student athletes’ participation.

Nevertheless, the NCAA has not released any public plans to change the 50 championships currently scheduled for Florida. If the NCAA were to follow through with their commitment to only host championships in states that unequivocally supports the opportunity for transgender student-athletes, this decision would cost Florida an estimated loss of $75 million dollars.[8] However, Florida does not seem to be worried about this potential massive loss of revenue to the state or the potential retaliation from the NCAA. State representative, Randy Fine, claimed to be unafraid of the NCAA stating, “They’re a bunch of clowns and they will fold and we’re not worried about it, look, we’re going to stand for women.”[9] Only time will tell if the NCAA will stand firm in their commitment to hosting championships in locations that follow their nondiscriminatory policy.

Hannah is a 2L at Elon University School of Law and host of Podcast “Bars to the Bar” from Hoboken, New Jersey. Hannah graduated from Providence College where she was a four-year manager for the Men’s Basketball Team. She can be found on Twitter @hannahjane503.

[1] https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderHandbook.pdf [2] https://www.nbcnews.com/feature/nbc-out/ncaa-backs-transgender-athletes-says-events-will-be-places-free-n1263879 [3] Id. [4] https://www.flgov.com/2021/06/01/governor-ron-desantis-signs-fairness-in-womens-sports-act/ [5] https://www.espn.com/espn/story/_/id/31547344/fl-transgender-women-now-banned-women-sports-public-schools [6] https://www.espn.com/espn/story/_/id/31547344/fl-transgender-women-now-banned-women-sports-public-schools [7] https://www.ncaa.org/about/resources/media-center/news/general-board-receives-equity-report-reaffirms-transgender-participation [8] https://www.news4jax.com/news/local/2021/08/17/ncaa-ratchets-up-pressure-on-florida-to-allow-transgender-athletes-to-compete-in-womens-sports/ [9] https://www.news4jax.com/news/local/2021/08/17/ncaa-ratchets-up-pressure-on-florida-to-allow-transgender-athletes-to-compete-in-womens-sports/