In a novel lawsuit to protect women’s sports, Texas Attorney General Ken Paxton alleges the National Collegiate Athletic Association (NCAA) is deceiving fans by allowing transgender, i.e., male, athletes to participate with females in women’s sporting events.
Opponents of transgender athletes in women’s sports usually point out the obvious physiological and competitive advantages men have over women. Allowing them to compete with females, they say, flies in the face of Title IX’s longstanding policy of preserving integrity and fairness in women’s sports.
This week’s Texas court case takes a new approach, arguing creatively that the NCAA violates the state’s consumer protection laws when it promotes products and services associated with women’s sports events that include male players.
“That only biological women will compete in the events is an important reason consumers choose to support women’s sports,” Paxton said in a statement announcing the lawsuit:
By falsely marketing and selling competitions as ‘women’s’ sports only to provide a mixed sex event, the NCAA violated the Texas Deceptive Trade Practices Act which exists to protect consumers from businesses attempting to mislead or trick them into purchasing goods or services that are not as advertised.
The NCAA also misleads consumers by failing to identify which athletes in its ‘women’s’ competitions are in fact men, the lawsuit says.
AG Paxton asked the court to prohibit the NCAA from allowing biological males to compete in women’s sporting events or, alternatively, to require them to stop referring to events where males are allowed to compete as “women’s” sporting events.
The Texas lawsuit was filed just a few days after NCAA President Charlie Baker appeared to testify in the Senate. When the topic turned to transgender athletes, Louisiana Senator John Kennedy slammed him for his failed leadership: “Your job is to promote fairness in collegiate sports,” he reminded Baker. “Why do you support allowing transgender women who are biological males to compete against non-transgender biological females?”
In what came across as a mealymouthed response, Baker explained that “under the current dynamic, there is not clarity on this issue legally.”
He’s not all wrong, though. Over the past year, states divided over whether to bar the Biden administration’s proposed changes to Title IX that would allow biological men into women’s spaces.
But by the end of the summer, the trend was not good for Biden. Several states sought and received preliminary injunctions against the rule changes, arguing among other things that they exceeded the bounds of the statutory text enacted by Congress, as Jim Nault wrote recently here. In August, the US Supreme Court held that state injunctions blocking the new rules could stay in place. The Court’s decision was a promising sign that, on full review, it would side with the states.
Finally, last week—two days before the Texas lawsuit was filed—the Department of Education caved, announcing it was officially withdrawing the proposed changes in light of the lawsuits challenging them. It was a celebrated win in the fight to protect women’s sports from the gender insanity—and all the legal “clarity” the NCAA should need to walk back its own transgender policy.
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