By: Hansa Suresh
Volume X – Issue II – Spring 2025
I. INTRODUCTION
i. The Legacy of Title IX and Patsy Mink
When Title IX was signed into law by President Richard Nixon on June 23, 1972, it marked a radical shift from the long-standing norms that had systematically excluded women from educational and athletic opportunities. At the heart of this transformative legislation was attorney and U.S. Representative Patsy Mink, a trailblazer whose contributions are too often overlooked. Mink’s relentless advocacy reshaped the landscape of publicly funded educational institutions, laying the foundation for a more inclusive and equitable system.
Title IX [1] states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” While this language appears straightforward, the legislative journey behind its passage was anything but simple.
In the late 1960s and early 1970s, momentum was building in Congress for federal legislation that would address gender discrimination. Although the Civil Rights Act of 1964 outlawed discrimination on the basis of race, color, religion, sex, or national origin, it did not extend those protections to education programs. Recognizing this gap, Mink and her colleagues—most notably Representative Edith Green and Senator Birch Bayh—spearheaded efforts to introduce a bill that would explicitly prohibit sex-based discrimination in federally funded educational settings. Mink, who had long battled gender and racial barriers in her own academic and professional journey, emerged as a leading voice for Title IX in the House of Representatives. She worked tirelessly with the House Education and Labor Committee to push the legislation forward, using both personal testimony and legal argumentation to underscore the systemic inequalities women faced in schools and colleges. Mink collaborated with civil rights groups and women’s organizations to rally support and frame Title IX not just as a women's issue, but as a matter of equal protection under the law. Though initially met with resistance, the bill gained traction thanks to careful negotiation, persistent advocacy, and strategic coalition-building. By the time it reached Nixon’s desk, Title IX had garnered bipartisan support—a testament to the compelling legal and moral case made by Mink and her allies.
The woman behind this landmark policy, Patsy Matsu Takemoto Mink, made history as the first woman of color and the first Asian-American woman elected to Congress. Born on December 6, 1927, in what was then the U.S. territory of Hawaii, Mink was a third-generation Japanese American who grew up in a plantation society shaped by economic hardship and racial barriers. Despite these challenges, she pursued higher education, becoming one of only two Asian students—and one of only two women— admitted to the University of Chicago Law School.
Before Title IX, institutionalized sexism in education was the norm. Girls were required to take home economics classes while boys studied subjects deemed more "rigorous" or "professional." Arbitrary quotas and outright bans prevented many women from enrolling in colleges and professional schools, with institutions often rejecting female applicants without justification. In athletics, opportunities were nearly nonexistent—female athletes had no access to college sports teams, no scholarships, and no infrastructure to support their aspirations beyond high school.
Mink understood firsthand the obstacles faced by women and refused to accept the status quo. As the co-author and chief sponsor of Title IX in the House, she played a pivotal role in dismantling systemic barriers that had long denied women equal opportunities in education and sports. “What you endure is who you are,” she once stated. “I can’t change the past. But I can certainly help somebody else in the future, so they don’t have to go through what I did.” Her efforts resulted in a sweeping transformation. Since the passage of Title IX, there has been a continuous rise in female participation in sports, a significant increase in women pursuing higher education, and expanded career opportunities in fields once dominated by men. Title IX has not only changed the trajectory of women’s lives but has also reshaped American society, fostering a culture where gender equality in education is recognized as a fundamental right. Patsy Mink’s legacy extends far beyond her passing in 2002—her vision continues to empower future generations, proving that advocacy and perseverance can dismantle even the most entrenched barriers.
ii. background of the Case
More than fifty years after the passage of Title IX, its interpretation and application in collegiate athletics are facing renewed scrutiny and mounting challenges. The case of Gaines v. National Collegiate Athletic Association (NCAA) is a high-profile legal battle between plaintiff Riley Gaines and defendant NCAA. Riley Gaines, an American conservative political activist and former collegiate swimmer, is widely recognized for her advocacy against the participation of transgender women in women’s sports. [2] A standout Division I athlete at the University of Kentucky, Gaines had an extensive and impressive swimming career, competing at the highest collegiate level.
The controversy at the heart of this case stems from the participation of Lia Thomas, a transgender woman, in the 2022 NCAA Women’s Swimming Championship. Thomas, who had previously competed for three years on the University of Pennsylvania’s men’s swimming team, transitioned and was permitted to compete in the women's category during her senior year. During the competition, Thomas broke multiple records, a development that Gaines and other athletes found contentious. [3] Gaines, who has refused to acknowledge Thomas’s gender identity and continues to use her deadname, has publicly claimed that her team was “blindsided” by Thomas’s eligibility to compete in the women's championship. She has also stated, “I watched him steal trophies from girls I’d known my whole life,” [4] underscoring her belief that the NCAA’s policies unfairly impacted cisgender female athletes.
As a result of these concerns, on March 14, 2024, Gaines, along with several other cisgender athletes competing in women’s college sports, filed a class action lawsuit against the NCAA in the U.S. District Court for the Northern District of Georgia. The plaintiffs argue that the NCAA’s policy permitting transgender women to compete in women’s sports violates multiple legal protections, including Title IX, which prohibits sex-based discrimination in education; the Equal Protection Clause of the Fourteenth Amendment, which guarantees equal treatment under the law; and their right to bodily privacy under the Due Process Clause of the U.S. Constitution. [5]
This lawsuit has ignited intense national debate, drawing attention to the broader cultural and legal conflicts surrounding gender identity, fairness in athletics, and the interpretation of civil rights protections. While the case remains ongoing, its outcome has the potential to significantly impact the landscape of collegiate sports, transgender inclusion policies, and the enforcement of Title IX in relation to gender identity.
iI. LEGAL PRECEDENTS AND LEGISLATION
i. Title iX
As previously stated, the implications of Title IX far surpass those of many other legislative measures, solidifying its role as one of the most transformative civil rights laws in American history. Over time, multiple federal courts have interpreted Title IX to prohibit discrimination based on transgender status, reinforcing the principle that sex-based protections must extend to transgender, nonbinary, and intersex students. In the context of sex-separated sports, courts have consistently ruled that categorical bans on transgender women and girls competing in alignment with their affirmed gender violate Title IX’s broad anti-discrimination mandate. [6]
The legal precedent is clear: numerous federal courts have affirmed that Title IX’s purpose is to provide all students—regardless of their gender identity—an equal opportunity to participate in school sports. [7] The U.S. Court of Appeals for the Fourth Circuit, along with federal district courts in Arizona and Idaho, have blocked the enforcement of state laws that seek to ban transgender athletes from participating in sports aligned with their gender identity. These rulings explicitly state that by singling out transgender students for exclusion solely because of their gender identity, such anti-trans sports bans constitute impermissible sex discrimination under Title IX. [8] These judicial findings are consistent with both the longstanding regulatory framework of Title IX and the broader legislative intent behind its passage.
When the Department of Health, Education, and Welfare (HEW) issued the first regulations implementing Title IX in 1975, they permitted—but did not require—sex-separated sports teams in cases where selection was based on competitive skill or when the sport was classified as a contact sport. [9] The underlying goal of these regulations was not to enforce a rigid, binary separation of athletes based on perceived biological differences, but rather to correct systemic inequities in athletic participation. For generations, women and girls were systematically excluded from competitive sports and denied the same athletic opportunities that were freely provided to men and boys. The creation of sex-separated teams was meant to expand opportunities for women and girls—not to impose restrictions that perpetuate exclusion and discrimination. [10]
Yet, despite the well-documented history of Title IX’s purpose, the plaintiffs in Gaines v. NCAA and other anti-transgender advocates continue to misrepresent its intent. The plaintiffs argue that allowing transgender women and girls to compete alongside cisgender female athletes undermines fairness due to an alleged biological advantage. [11] However, this claim directly contradicts the principles Title IX was built upon. By insisting that participation in women’s sports must be restricted based on assigned sex at birth, these arguments reinforce the very sex-based stereotypes that Title IX was designed to dismantle.
Before Title IX, women and girls were consistently denied access to athletic opportunities under the assumption that men and boys were inherently more athletic, physically superior, and naturally inclined toward competition. [12] The same logic is now being weaponized to exclude transgender women and girls, asserting that those assigned male at birth are inherently athletically superior to those assigned female at birth. This reasoning not only promotes discrimination against transgender athletes but also perpetuates sex-based discrimination against all women and girls, particularly those who do not conform to traditional expectations of femininity.
Additionally, the Gaines plaintiffs falsely assert that they were deprived of their right to a championship under Title IX, arguing that they suffered "losses of placement" [13] and awards when competing against transgender athletes. However, such a right does not exist under Title IX. The statute and its implementing regulations do not guarantee any athlete a right to victory, championship titles, or podium placements. Rather, Title IX’s core objective is to ensure equal access to athletic opportunities free from sex-based discrimination. [14] The notion that sports should be structured to guarantee cisgender athletes a particular competitive outcome distorts the fundamental intent of Title IX and ignores the reality that athletic competition inherently involves variables beyond individual control, including natural talent, training, coaching, and experience.
In essence, the Gaines v. NCAA lawsuit is not merely a challenge to transgender inclusion in sports—it is a broader attempt to reshape the application of Title IX in a way that contradicts its foundational principles. If successful, such legal efforts could have far-reaching consequences, not only for transgender athletes but for the broader fight against sex-based discrimination in education and athletics. By reinforcing outdated stereotypes about athletic ability and gender, this case threatens to undermine decades of progress toward equal opportunity in sports—a reality that Title IX was enacted to prevent.
ii. Equal Protection Clause
Categorical bans targeting transgender women athletes fail constitutional review under the Equal Protection Clause. As the Supreme Court recently explained, “it is impossible to discriminate against a person for [being] transgender without discriminating against an individual based on sex,” [15] as established in the precedent set by Bostock v. Clayton County. This ruling underscores the inextricable link between discrimination based on transgender status and sex-based discrimination, making it constitutionally suspect under existing legal frameworks.
For this reason, federal courts adjudicating constitutional claims against policies that discriminate against transgender students have consistently applied a standard known as heightened scrutiny. Under this standard, any policy that discriminates based on an individual’s transgender status must be justified by an exceedingly persuasive interest. [16] In other words, the government must provide a compelling justification that is substantially related to an important governmental objective. Courts have repeatedly affirmed that a mere desire to harm or exclude a politically unpopular minority does not constitute a legally valid or constitutionally permissible interest.
Federal courts scrutinizing policies that single out transgender women and girls for exclusion from educational opportunities—including bans that prevent them from accessing sex-separated spaces and participating in school programming that aligns with their affirmed gender—have consistently ruled that such restrictions violate the Equal Protection Clause. [17] This includes participation in school sports, where courts have determined that policies subjecting transgender students to disparate treatment amount to unconstitutional discrimination.
One of the most significant rulings on this issue came from the Ninth Circuit, which blocked the implementation of Idaho’s categorical ban targeting transgender women and girls in sports. [18] The court held that excluding transgender athletes from the benefits of participation in sports solely on the basis of their transgender status constitutes unlawful discrimination. The Ninth Circuit rejected the Idaho legislature’s claim that the ban was necessary to protect women’s sports from supposed “dominance” by transgender women and girls. Instead, the court determined that this rationale was a pretext for discrimination rather than a legitimate governmental interest. [19] Furthermore, the appeals court recognized that Idaho’s law not only harmed transgender students but also encouraged invasive and abusive sex verification practices that could negatively impact all women and girls. By reinforcing gender policing and subjecting female athletes to intrusive scrutiny, the policy ultimately undermined the very protections it purported to uphold.
This growing body of case law underscores a clear constitutional principle: policies that impose categorical exclusions on transgender women and girls, particularly in education and sports, fail under heightened judicial scrutiny and violate the Equal Protection Clause. Courts continue to reaffirm that laws rooted in fear, stereotypes, or political hostility toward transgender individuals cannot, and will not, withstand constitutional review.
III. POTENTIAL OUTCOMES OF THE CASE
A ruling in favor of Gaines would mark a significant departure from established precedent—most notably the Supreme Court’s decision in Bostock v. Clayton County (2020), which held that discrimination based on transgender status is inherently a form of sex discrimination. While Bostock was decided under Title VII, its reasoning has influenced how courts interpret similar language in Title IX, which prohibits sex-based discrimination in education. This connection was evident in B.P.J. v. West Virginia State Board of Education, where a federal court initially blocked a state law banning transgender girls from girls’ sports, citing Bostock and concluding that the plaintiff was likely to succeed on her Title IX and Equal Protection claims.
If the court sides with Gaines and strikes down the NCAA’s inclusion policy, it could signal a judicial willingness to diverge from that precedent. Such a decision could embolden lawmakers and advocacy groups to enact or defend broader exclusions of transgender individuals—not just in athletics, but in areas like restroom access, academic programs, and even scholarships. Under the guise of “protecting fairness,” these measures would effectively permit state-sanctioned discrimination, despite the growing body of case law affirming that such exclusion violates federal protections. Although policies of this nature would likely remain vulnerable to legal challenge, a victory for Gaines would introduce uncertainty into what has otherwise been a steadily developing area of civil rights law. The implications could also reach into the realm of healthcare. An adverse ruling could be leveraged to restrict access to gender-affirming care in educational institutions, especially if courts begin to accept arguments that such care confers an “unfair advantage” in gendered spaces. This would further politicize essential medical treatment and pose a serious threat to the well-being and rights of transgender youth across K-12 schools and universities.
Conversely, if the court rules in favor of the NCAA and upholds the constitutionality of its inclusion policy, the outcome would build upon the foundation laid by Bostock and reaffirm the rationale used in B.P.J.—that transgender students are entitled to equal treatment under both Title IX and the Equal Protection Clause. Such a ruling would not only validate institutional efforts to foster inclusion but also send a powerful message that constitutional protections extend to gender identity, even in highly contested areas like athletics. It would help stabilize the legal environment for schools and athletic organizations facing political pressure to roll back transgender-inclusive policies.
IV. CONCLUSION
The case of Gaines v. NCAA stands as a critical juncture in the ongoing debate over the inclusion of transgender athletes in women’s sports. While the case has not yet been decided, the ripple effects of its advocacy are already apparent, as evidenced by the NCAA's controversial policy change, effective February 6, 2025. This policy shift, which restricts student-athletes assigned male at birth from competing on women’s teams, while allowing them to practice in alignment with their gender identity, as well as the prohibition against student-athletes assigned female at birth who have begun testosterone therapy from competing on women’s teams, has ignited significant legal and cultural discussions. [20] Though Gaines has not won her case yet, her challenge to the NCAA’s policies has already made an impact, altering the rules and creating a platform for those who seek to curb transgender inclusion in sports. The new restrictions signal a dangerous shift away from the NCAA's historically inclusive stance, one that has long been anchored in the principles of Title IX, which strives to ensure that all individuals have equal access to athletic opportunities regardless of sex. The principles of equality and inclusion, which have been foundational to the progress in women’s sports, are now being questioned and threatened by a policy that favors exclusion based on outdated gender stereotypes. As such, the NCAA risks eroding its historic legacy of inclusivity and fairness in pursuit of a policy that fails to balance the rights of transgender athletes with the need for fair competition.
For decades, the NCAA has taken strides to promote fairness and opportunity for women in sports, embracing the values embedded in Title IX, which has served as a powerful tool to ensure that no one is excluded from educational or athletic opportunities on the basis of sex. Yet now, in the wake of cases like Gaines v. NCAA, there is a growing threat to the rights of transgender athletes to compete in alignment with their gender identity. The shift in the NCAA’s stance—driven by figures like Gaines, who challenge established legal precedents and policies—raises the question of whether the institution will continue to uphold its commitment to inclusivity or turn its back on decades of progress. As the case progresses, it is vital that the courts and the NCAA itself remain vigilant in safeguarding the values of equality, fairness, and respect for all athletes, regardless of gender identity. In this critical moment, the NCAA must choose whether to remain on the right side of history, one that honors the legal principles of equality and inclusion, or to shift away from these foundational ideals. In the end, the outcome of Gaines v. NCAA will serve as a defining moment for the future of transgender inclusion in sports, setting a precedent for how courts and institutions balance inclusion with fairness, and ultimately, whether transgender athletes will be granted the same rights to compete as their cisgender counterparts.
Endnotes
[1] Title IX, 20 U.S.C. §§ 1681–1688 (2018).
[2] “Meet Riley.” The Riley Gaines Center at the Leadership Institute, January 26, 2024. https://rileygainescenter.org/about/.
[3] “Meet Riley.” The Riley Gaines Center at the Leadership Institute, January 26, 2024. https://rileygainescenter.org/about/.
[4] “Meet Riley.” The Riley Gaines Center at the Leadership Institute, January 26, 2024. https://rileygainescenter.org/about/.
[5] “Case: Gaines v. National Collegiate Athletic Association.” Civil Rights Litigation Clearinghouse. Accessed March 12, 2025. https://clearinghouse.net/case/46015/.
[6] B.P.J. v. West Virginia, No. 23-1078, 2024 WL 1627008, *4–5 (4th Cir. Apr. 16, 2024); Doe v. Horne, 2023 WL 4661831, 32 (D. Ariz. July 2023); A.M. v. Indianapolis Pub. Sch., 617 F. Supp. 3d 950, 966 (S.D. Ind. July 26, 2022).
[7] Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
[8] B.P.J. v. West Virginia, No. 23-1078, 2024 WL 1627008, *4–5 (4th Cir. Apr. 16, 2024); Doe v. Horne, 2023 WL 4661831, 32 (D. Ariz. July 2023); A.M. v. Indianapolis Pub. Sch., 617 F. Supp. 3d 950, 966 (S.D. Ind. July 26, 2022).
[9] In 1979, HEW was abolished and was split into the U.S. Department of Education and U.S. Department of Health and Human Services.
[10] Deborah L. Brake, Title IX’s Trans Panic, 29 Wm. & Mary J. Race, Gender & Soc. Just. 41, 64 (2023) (citing Erin Buzuvis, Title IX: Separate but Equal for Girls and Women in Athletics, Oxford Handbook of Feminism & Law in the U.S. 23) (“Similar to the case for women-only discussion groups, the concern was that male players might hog the playing field, refusing to fully engage with women as teammates or opponents, creating negative sport experiences that would further suppress girls’ and women’s interests and abilities.”).
[11] Gaines v. National Collegiate Athletic Ass’n et al., No. 1:24-cv-01109 (N.D. Ga. 2024), ECF No. 24.
[12] Brake, supra note 10, at 86 (citing Susan Cahn, Coming on Strong: Gender and Sexuality in Twentieth Century Women’s Sport 4 (1994)) (“Women were long protected out of sports due to beliefs about the frailty of ‘the fairer sex’ and a purported threat to women’s fertility...[and] the belief that women are naturally inferior to men in sports competition.”).
[13] Gaines v. National Collegiate Athletic Ass’n et al., No. 1:24-cv-01109 (N.D. Ga. 2024), ECF No. 24.
[14] “Title IX.” Civil Rights Division, January 31, 2025. https://www.justice.gov/crt/title-ix.
[15] Bostock v. Clayton County, 150 S. Ct. 1731, 1747 (2020).
[16] Bostock v. Clayton County, 150 S. Ct. 1731, 1747 (2020).
[17] Bostock v. Clayton County, 150 S. Ct. 1731, 1747 (2020).
[18] American University Business Law Review, December 17, 2024. https://aublr.org/2021/04/idahos-transgender-athlete-ban-unintended-consequences/.
[19] American University Business Law Review, December 17, 2024. https://aublr.org/2021/04/idahos-transgender-athlete-ban-unintended-consequences/.
[20] “Participation Policy for Transgender Student-Athletes.” NCAA.org. Accessed March 14, 2025. https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx#:~:text=The%20policy%20outlined%20below%20applies,marked%20on%20their%20birth%20records.