On February 6, 2025, the National Collegiate Athletic Association (“NCAA”) unveiled its new “Participation Policy for Transgender Student-Athletes,” which followed President Donald Trump’s Executive Order, passed on February 5, 2025, titled “Keeping Men Out of Women’s Sports.”[2] It is estimated that less than one hundred transgender athletes are participating in women’s sports at all levels, with less than ten transgender athletes participating in the NCAA, according to Charlie Baker, the president of the NCAA.[3] Further, other individuals argue that transgender women have no noticeable advantage over biological women in sports after several years of the transgender woman taking gender-affirming hormones.[4] This has led to one important question: Are these laws actually necessary?
The Evolution of the Rules
State and Federal Law
Twenty-five states have passed laws that hinder transgender athletes’ ability to participate in sports that align with their gender identity, especially transgender women in women’s sports, but these laws vary from state to state.[5] However, in April 2023, the U.S. House of Representatives passed the “Protection of Women and Girls in Sports Act of 2023” (“Act”) and the language in the Act exemplified the theme of all of the state’s laws.[6] The Act made it a violation of Title IX to allow biological males (i.e., transgender women) to participate in women’s sports, and biological sex would be determined by an individual’s “reproductive biology and genetics at birth.”[7] However, the Act was introduced while the Democrats had control of the Senate and President Joe Biden was still in the Oval Office, so it had no life beyond the House of Representatives.[8]
The first federal law – an Executive Order – to ban transgender women from competing in women’s sports was executed on February 5, 2025, by President Trump.[9] The Executive Order, titled “Keeping Men Out of Women’s Sports” (“Order”) stated that the federal government would “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities” and “oppose male competitive participation in women’s sports more broadly,” effectively banning all transgender women from women’s sports at every level.[10]
The NCAA
Although the NCAA previously addressed transgender student-athletes, the NCAA Board of Governors passed a sport-by-sport approach to determine transgender athlete eligibility in 2022.[11] The rules would be governed by the national governing body (“NGB”) of the sport.[12] If there was no NGB for the sport, the sport’s international federation policy (“IFP”) would govern.[13] If there was no NGB or IFP for the sport, the International Olympic Committee’s policy criteria would govern.[14] The testosterone levels of the transgender athletes would be monitored at several different times: four weeks before the championship selections, continuing until the championship; the beginning of their season; and six months into the season.[15]
The NCAA passed a new “Participation Policy for Transgender Student-Athletes on February 6, 2025, in compliance with President Trump’s Executive Order.[16] All individuals may compete on a men’s team, regardless of their biological sex or gender identity.[17] However, an athlete “assigned male at birth” cannot compete on a women’s team, though they may practice with the team. An athlete “assigned female at birth” who is taking gender-affirming hormones, such as testosterone, cannot compete on a women’s team, though they may practice with the team.[18]
The Number of Transgender Athletes in the Country
As described above, there are likely less than one hundred transgender women athletes in the country at all levels, and there is confirmed to be less than ten transgender athletes competing in the NCAA.[19] It is unknown whether the transgender athletes in the NCAA are transgender men or women.[20] Although executive orders that apply to a small number of individuals are not inherently invalid because of this, some individuals have questioned the Order as transgender individuals (not just athletes) constitute 1% of adults in the United States.[21]
Equal Protection and Title IX
President Trump expects the Order to be enforced under Title IX, but transgender athletes and their families have challenged similar state laws claiming that they not only violate Equal Protection, but also Title IX.[22] The Equal Protection Clause of the Constitution requires all individuals to be treated equally under the law and prohibits discrimination based on sex, and any laws that may discriminate based on sex are evaluated under “heightened scrutiny.”[23] For their Equal Protection Clause argument, the transgender athletes and their families cite a Supreme Court ruling that determined that discriminating against transgender people is discrimination based on sex, prohibited by Title VII (an employment discrimination statute).[24] They also claim that Title IX protects the right of transgender women to compete in women’s sports.[25] We will likely see similar challenges to the Order.[26]
Do Transgender Women Have an Advantage Over Cisgender Women?
Many studies have examined this question and have come up with different conclusions. In 2022, the University of São Paulo analyzed the “strength and aerobic ability” of biological men, biological women, and transgender women with the same age and physical activity.[27] The transgender women were the only individuals taking gender affirming hormones.[28] They discovered that transgender women had “about 40% greater muscle mass” and were 19% stronger with “20% greater cardiopulmonary capacity” than the biological women, even with similar testosterone levels.[29] However, this study was conducted with a small number of individuals (only 15 transgender women), and none of these women were high school- or college-aged students.[30]
But another researcher looking at many different studies (one including over 220 individuals) concluded that restricting transgender athletes from participating only serves to harm transgender individuals and perpetuate misconceptions.[31]There are cisgender women who are exceptional in their sports and perform at a higher level than a transgender woman ever would.[32] Additionally, even with sex differences in strength and other factors present after puberty, much of these differences are reduced or even eliminated over time by gender-affirming hormones (e.g., estrogen).[33]
It is still unclear whether these laws are necessary, but it seems that more research must be conducted before making drastic decisions that will affect athletes who only want to enjoy playing their sport.
TORY BELVAL (guest writer) is a 2L at Villanova University Charles Widger School of Law. She is Vice President of the Sports Law Society and a part of the Sports Law Concentration. Tory is interested in college athletic compliance and hopes to one day work in the compliance office of a D1 college or university.
References:
[1] Photo by Chandan Chaurasia on Unsplash
[2] See NCAA, Participation Policy for Transgender Student-Athletes. (Feb. 6, 2025) https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx.
[3] Anna Skinner, How Many Transgender Athletes Play Women’s Sports?, Newsweek. (May 11, 2023) https://www.newsweek.com/how-many-transgender-athletes-play-womens-sports-1796006; Clarissa-Jan Lim, NCAA Bars Trans Athletes from Competing in Women’s Sports After Trump Order, MSNBC. (Feb. 7, 2025) https://www.msnbc.com/top-stories/latest/ncaa-trans-athletes-trump-order-rcna191171.
[4] See D. J. Oberlin, Sex Differences and Athletic Performance. Where do Trans Individuals Fit into Sports and Athletics Based on Current Research?, National Library of Medicine. (Oct. 27, 2023) https://pmc.ncbi.nlm.nih.gov/articles/PMC10641525/#s7.
[5] See Katie Barnes, Transgender Athlete Laws by State: Legislation, Science, More, ESPN. (Aug. 24, 2023) https://www.espn.com/espn/story/_/id/38209262/transgender-athlete-laws-state-legislation-science.
[6] Id.
[7] Id.
[8] See id.
[9] The White House, Keeping Men Out of Women’s Sports (Executive Order). (Feb. 5, 2025) https://www.whitehouse.gov/presidential-actions/2025/02/keeping-men-out-of-womens-sports/.
[10] See id.
[11] NCAA, Board of Governors Updates Transgender Participation Policy. (Jan. 19, 2022) https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] See NCAA, Participation Policy for Transgender Student-Athletes. (Feb. 6, 2025) https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx.
[17] Id.
[18] Id.
[19] See Skinner, Lim, supra note 3.
[20] See id.
[21] See Talya Minsberg, What We Know About Trump’s New Executive Order on Trans Athletes, The New York Times. (Feb. 5, 2025) https://www.nytimes.com/2025/02/05/us/politics/trump-trans-athletes-executive-order.html.
[22] Brendan Pierson & Julia Harte, Why Donald Trump’s Ban on Trans Sports May Fall at the First Hurdle, Independent. (Feb. 6, 2025) https://www.independent.co.uk/news/world/americas/us-politics/donald-trump-trans-sport-ban-legal-b2693341.html.
[23] Brian T. Fitzpatrick & Theodore M. Shaw, The Equal Protection Clause, National Constitution Center. https://constitutioncenter.org/the-constitution/articles/amendment-xiv/clauses/702.
[24] Pierson & Harte, supra note 22.
[25] Id.
[26] Id.
[27] Ross Pomeroy, The Blunt Scientific Truth About Transgender Women’s Athletic Ability, Big Think. (Oct. 11, 2022), https://bigthink.com/health/truth-about-transgender-womens-athletic-ability.
[28] See id.
[29] Id.
[30] Id.
[31] Oberlin, supra note 4.
[32] See id.
[33] Id.
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