U.S. District Judge Tiffany R. Johnson on Thursday dismissed all but one type of claim brought by former University of Kentucky swimmer Riley Gaines and more than a dozen other female athletes against the NCAA, the University of Georgia and other defendants over the collegiate eligibility of transgender athletes.
In March 2024, the athletes sued in a Georgia federal district court, arguing the NCAA’s then-policy of permitting transgender athletes on a sport-by-sport basis in alignment with the Olympics and based on determinations by national governing bodies for each sport violated Title IX, the Equal Protection Clause and the right to bodily privacy.
In February, the NCAA adopted a new transgender policy that prohibits student-athletes assigned male at birth from competing on women’s teams. The NCAA’s move came after President Donald Trump issued an executive order banning transgender athletes.
Had the current NCAA policy been in effect a few years ago, then-Penn swimmer Lia Thomas, a focal point of the lawsuit and the surrounding political controversy over transgender athletes, would have been ineligible. Thomas and Gaines, an All-American, tied for fifth in the 200-yard freestyle event at the 2022 NCAA swimming and diving championships.
Johnson, whom President Joe Biden nominated to the bench last year, identified a number of problems in Gaines’ legal theories. One flaw is a law called the Riley Gaines Act.
For starters, Johnson found Gaines’ demands for Georgia, the Georgia Tech Athletic Association and assorted other defendants associated with the state to be moot. The Riley Gaines Act, which Georgia Gov. Brian Kemp signed into law in April, prohibits Georgia universities from, as Johnson summarized, “hosting or participating in competitions where biologically male athletes are permitted to either compete against biologically female athletes or use female-designated restrooms and other facilities.” The judge noted this law prohibits “exactly the conduct” Gaines targets in the complaint. The remedy sought by Gaines is therefore already in place, meaning her claim is no longer needed.
Johnson also dismissed Gaines’ constitutional claims against the NCAA. The primary problem for the plaintiffs: The U.S. Supreme ruled in NCAA v. Tarkanian (1988) that the NCAA is not a state actor, meaning a governmental entity or an entity that acts on behalf of the state. State actors need to provide the constitutional rights that attach to government actions, whereas other actors don’t. Although many NCAA members are public universities, which are state actors, the NCAA is itself a nonprofit organization.
In Tarkanian, Jerry Tarkanian, who UNLV—a public university—suspended as the men’s basketball coach for violating NCAA rules, argued that he was denied due process under the 14th Amendment. Tarkanian maintained the NCAA’s authority over UNLV, and UNLV following NCAA rules, was tantamount to the NCAA engaging in state action. The Supreme Court disagreed, reasoning the membership relationship between UNLV and the NCAA didn’t warrant a finding of state action by the NCAA.
Johnson reached a similar conclusion with respect to Gaines’ attempt to ascribe state action to the NCAA.
“Much like UNLV’s decision to follow the NCAA’s rules did not transform the NCAA’s rulemaking into state action,” Johnson wrote, “all of the schools that participated in the 2022 Championships did not transform the NCAA policy on transgender athletes into state action.” She added that the “Plaintiffs’ argument that the NCAA is a stand in for, effectively, every state in the country is illogical when the Supreme Court has already determined its involvement with one state was too attenuated to constitute state action.”
However, the judge did not dismiss Gaines’ Title IX claims against the NCAA.
Gaines argues since Title IX guarantees men and women equal opportunities to compete in athletics, permitting transgender female athletes to compete deprives other women athletes. The NCAA countered that it doesn’t receive federal financial assistance for purposes of Title IX, which is a requirement for Title IX to apply. Courts have generally found that the NCAA and conferences aren’t subject to Title IX unlike their member schools, which are recipients of federal funds.
Johnson was persuaded by Gaines’ assertion that the NCAA receives federal financial assistance through a partnership, dubbed the Grand Alliance, with the U.S. Department of Defense. Their collaboration is for concussion research. The NCAA countered this collaboration doesn’t establish that the NCAA itself receives or controls the funds. The NCAA also suggested that Grand Alliance is a separate legal entity from the NCAA.
The judge said more information is needed before she can dismiss the claim.
“While it is unclear whether the federal government’s money ever rested in NCAA’s coffers,” Johnson pointed out, “there is at least a plausible allegation that NCAA research was either directly or indirectly funded by the DoD and that the NCAA either directly or indirectly plays a role in deciding how those funds are used.”
The case will advance to limited initial discovery, meaning the parties need to provide testimony and share relevant emails and other documents. Johnson acknowledged that none of the plaintiffs will have remaining NCAA eligibility after 2028 and that the NCAA’s policy on transgender athletes could conceivably change based on political and legal developments in the years ahead.
Although Johnson advanced Gaines’ Title IX claims with cautionary language, the Independent Council on Women’s Sports, the advocacy organization backing the lawsuit, nonetheless touted Johnson’s ruling as a “major step toward proving the NCAA violated Title IX by allowing men to compete on women’s teams.”
In a statement shared with Sportico, an NCAA spokesperson said, “College sports remain the premier stage for women’s sports in America, and the Association and its members will continue to promote Title IX, make unprecedented investments in women’s sports and ensure fair competition in NCAA championships.” The spokesperson added, “the NCAA’s transgender participation policy aligns with the Trump Administration’s order.”
