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You may not believe this, but the National Collegiate Athletic Association (NCAA), with its prime-time TV contracts and multi-million-dollar advertising budget, is a nonprofit organization under federal law. For decades the NCAA has been immune from Title IX lawsuits because it’s a nonprofit that doesn’t receive federal funds. But two federal courts have just redefined the meaning of “federal financial assistance” under Title IX and changed the equation for female athletes seeking to sue the NCAA.  

Last month, federal courts in Maryland and California ruled against religious schools in sexual harassment cases declaring their nonprofit tax-exempt status amounts to federal financial assistance. Under the same reasoning, it wouldn’t matter that the NCAA doesn’t receive federal money. The mere fact that the IRS grants it the privilege of being exempt from federal taxes amounts to financial assistance.  

While these opinions are rightfully criticized, their reasoning could pave the needed path for female student athletes to sue the NCAA for its discriminatory policy allowing biological males to compete in women’s sports.  

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Under policies forced by the NCAA, women are being exploited in ways never intended. Look no further than the real March Madness this year when school records at the University of Pennsylvania (UPenn) were shattered and an NCAA national title in women’s swimming was won by a male swimmer self-identifying as a woman. Lia Thomas’ records weren’t won by any measure of fairness or equity in women’s sports. They were stolen and only because the NCAA allowed it to happen.  

Lawmakers listen as parents speak about the prospect of their children competing against transgender girls in school sports at the Utah State Capitol on March 25, 2022, in Salt Lake City. (AP Photo/Samuel Metz, File)
(AP Photo/Samuel Metz, File)

The NCAA’s woke policy of “inclusion,” which dates back more than a decade, flagrantly disregards its undeniable impact: any female athlete identifying as a man is a token on the men’s team, any male competing on the women’s team is taking trophies and nominated for female athlete of the year.  

If suing the NCAA to correct its blatant sex discrimination against women requires the use of novel reasoning by the court, then bring it on.  

After 50 years of Title IX paving the way for female athletes to excel in college athletics, it’s time to stop the madness of a new discrimination in women’s sports. When Title IX passed in 1972, fewer than 30,000 women were playing college sports. In 2020, over 222,000 women were competing in the NCAA – 44% of all college student-athletes. Today, Title IX protections are being erased for female athletes.  

For decades, the NCAA has hidden behind its status as a “non-recipient” of federal funding to evade accountability in Title IX sex discrimination cases. Its army of attorneys has prevailed in court – all the way to the Supreme Court – on this basis.  

Twenty-two years ago, Justice Ruth Bader Ginsburg reasoned that “indirect aid” to the NCAA from its college dues-paying members arguably might constitute “federal financial assistance.” But even Justice Ginsburg, a champion for women’s equality, did not go so far as to accept that theory. In her unanimous opinion in NCAA v. Smith (1999) involving a female college volleyball player, Ginsburg sided with the NCAA, writing:  

At most, the association’s receipt of dues demonstrates that it indirectly benefits from the federal assistance afforded its members. This showing, without more, is insufficient to trigger Title IX coverage. 

Which makes the development in these federal court cases all the more important for female athletes, and ominous for the NCAA.  

The NCAA will likely shrug off this threat arguing an inept reading of Supreme Court precedent. But it can’t hide from a new development in case law nor the scrutiny of how it has forced female athletes to face discrimination, intimidation, and harassment by allowing a male-bodied swimmer to invade female locker rooms and knock female winners off the podium. College sports should not make women the objects of sex discrimination because some men want to be women. Neither should the Biden administration by mandating new Title IX rules that redefine sex as “gender identity.”

Penn's Lia Thomas waits to compete in a qualifying heat of the 500 yard freestyle event at the Ivy League Women's Swimming and Diving Championships at Harvard University, Thursday, Feb. 17, 2022, in Cambridge, Mass.

Penn’s Lia Thomas waits to compete in a qualifying heat of the 500 yard freestyle event at the Ivy League Women’s Swimming and Diving Championships at Harvard University, Thursday, Feb. 17, 2022, in Cambridge, Mass.
(AP Photo/Mary Schwalm)

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Which is why female student athletes who have been told to stand down should now use their voice n court against the NCAA. Over multiple seasons in women’s track and swimming, the NCAA has subjected college female athletes to harassment and discrimination competing in their own sports. A vast majority of Americans understand this injustice and oppose what is happening today.  

Female athletes participating under the banner of the NCAA need a path to protect their rights. To their shame, no university has stood up for women athletes and against the NCAA on this issue. The NCAA and its governing board will argue that it has off-loaded policy decisions on transgender athlete participation to national and international sports bodies. Not so fast. The elitist NCAA fails to connect the dots that its dues-paying member institutions answer to the laws of the United States, not the International Olympic Committee.   

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Title IX is U.S. law and nowhere in that law prohibiting discrimination on the basis of sex does it state that sex discrimination protects men who self-identify as women to compete in women’s sports or use women’s locker rooms.  

Female athletes deserve their day in court. Female athletes deserve justice and fairness in women’s sports. One way or another, the courts must protect women’s rights under federal law. 

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