Amicus Curiae Brief — Bradley Little, Governor of Idaho, et al., Petitioners v. Lindsay Hecox, et al.

Nos. 24-38, 24-43

IN THE

Supreme Court of the United States

————

BRADLEY LITTLE, GOVERNOR OF IDAHO, et al.,

Petitioners,

v.

LINDSAY HECOX, et al.,

Respondents.

————

WEST VIRGINIA, et al.,

Petitioners,

v.

B.P.J., BY HER NEXT FRIEND AND MOTHER,

HEATHER JACKSON,

Respondents.

————

On Writs of Certiorari to the

United States Courts of Appeals

for the Ninth and Fourth Circuits

————

BRIEF OF RILEY GAINES AND 32 COLLEGE

ATHLETES AS AMICI CURIAE IN SUPPORT

OF PETITIONER AND ADDRESSING TITLE IX

INJURIES ARISING FROM POLICIES OF

COLLEGE SPORTS GOVERNING BODIES

————

WILLIAM BOCK III

Counsel of Record

JUSTIN R. OLSON

KROGER GARDIS AND REGAS, LLP

111 Monument Circle Ste 900

Indianapolis, Indiana 46204

(317) 777-7412

wbock@kgrlaw.com

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

I.

Women Lose Privacy and Equal Opportunities

When Trans-Identifying Men Access Women’s

Private Spaces................................................... 5

A.

Women Were Traumatized After the

NCAA Invited a Man to Compete in the

National Women’s Swimming & Diving

Championships ..................................... 12

B.

Rights to Sex-Separated Spaces and

Bodily Privacy Are Violated by NCAA

Rules ..................................................... 16

C.

Women’s Privacy Violated by Men in

College Volleyball ................................. 19

D.

Current Transgender Eligibility Policies

in College Sports Harm Women .......... 20

II.

The NCAA Enforces Transgender Eligibility

Rules in College Sport .................................... 23

III.

College Sports Governing Bodies Violate Title

IX by Adopting and Enforcing Transgender

Eligibility Rules .............................................. 25

ii

A.

Controlling Authority Test .................. 29

B.

Civil Rights Restoration Act (CRRA) .. 34

CONCLUSION .......................................................... 36

iii

TABLE OF AUTHORITIES

Page(s)

Cases

A.B. v. Haw. State Dep’t Educ.,

386 F. Supp. 3d 1352 (D. Haw. 2019) .................... 29

A.C. by M.C. v. Metro Sch. Dist. of Martinsville,

75 F. 4th 760 (7th Cir. 2023).................................. 10

Adams by & through Kasper v. Sch. Bd. of St. Johns

Cnty.,

57 F.4th 791 (11th Cir. 2022)................... 8, 9, 10, 11

B.P.J. by Jackson v. W. Virginia State Bd. of Educ.,

98 F.4th 542 (4th Cir. 2024) 2, 3, 5, 8, 10, 11, 23, 26,

27, 31

Barrs v. S. Conf.,

734 F. Supp. 2d 1229 (N.D. Ala. 2010) .................. 31

Calagaz v. Calhoon,

309 F.2d 248 (5th Cir. 1962) .................................. 35

Cannon v. Univ. of Chicago,

441 U.S. 677 (1979) ................................................ 31

Communities for Equity v. Michigan High Sch.

Athletic Ass’n,

80 F. Supp. 2d 729 (W.D. Mich. 2000) ............. 29, 31

Cureton v. NCAA,

198 F .3d 107 (3d Cir. 1999)................................... 32

iv

D.P. by A.B. v. Mukwonago Area Sch. Dist.,

140 F.4th 826 (7th Cir. 2025)................................. 10

D.P. by A.B. v. Mukwonago Area Sch. Dist.,

No. 23-2568, 2025 WL 1794428 (7th Cir. June 30,

2025) ....................................................................... 10

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .................................................. 8

Doe v. Boyerton Area Sch. Dist.,

897 F. 3d 518 (3d Cir. 2018)................................... 10

Fortner v. Thomas,

983 F.2d 1024 (11th Cir. 1993) ................................ 9

Grimm v. Gloucester Cnty. Sch. Bd.,

822 F.3d 709 (4th Cir. 2016) .................................... 9

Grimm v. Gloucester Cnty. Sch. Bd.,

972 F.3d 586 (4th Cir. 2020) .................................. 10

Grove City Coll. v. Bell,

465 U.S. 555 (1984) .......................................... 25, 26

Hecox v. Little,

104 F.4th 1061 (9th Cir. 2024)............... 4, 23, 24, 25

Horner v. Kentucky High Sch. Athletic Ass’n,

43 F.3d 265 (6th Cir. 1994) .............................. 26, 29

Houchins v. KQED, Inc.,

438 U.S. 1 fn.2 (1978) ............................................... 9

Nat’l Collegiate Athletic Ass’n v. Smith,

525 U.S. 459 (1999) .......................... 3, 29, 30, 31, 34

v

Nguyen v. I.N.S.,

533 U.S. 53 (2001) .................................................... 6

Parents for Privacy v. Barr,

949 F.3d 1210 (9th Cir. 2020) ................................ 10

Smith v. NCAA,

266 F .3d 152 (3d Cir. 2001)................................... 32

U.S. v. Virginia,

518 U.S. 515 (1996) .................................................. 7

Underwriters at Lloyd’s, London v. Osting-Schwinn,

613 F.3d 1079 (11th Cir. 2010) .............................. 35

United States DOT v. Paralyzed Veterans of America,

477 U.S. 597 (1986) ................................................ 30

United States v. Rahimi,

602 U.S. 680 (2024) .................................................. 8

United States v. Skrmetti,

145 S. Ct. 1816, 222 L. Ed. 2d 136 (2025) ............. 10

Whitaker by Whitaker v. Kenosha Unified Sch. Dist.

No. 1 Bd. of Educ.,

858 F.3d 1034 (7th Cir. 2017) ................................ 10

Williams v. Board of Regents of Univ. Sys. of Ga.,

477 F.3d 1282 (11th Cir. 2007) ........................ 26, 31

Statutes

20 U.S.C. § 1681 .................................................. 25, 32

20 U.S.C. § 1686 .......................................................... 8

vi

20 U.S.C. § 1687 .................................................. 34, 35

Pub. L. No. 100-259, § 2(1), 102 Stat. 28, 28 (1988)

................................................................................. 34

Regulations

34 C.F.R. § 106.33........................................................ 8

34 C.F.R. § 106.41(c)(7) ............................................... 7

Other Authorities

Carter, W. Burlette, Sexism in the “Bathroom

Debates”: How Bathrooms Really Became Separated

BY SEX,

37 YALE L. & Pol’y Rev. 227 (2019) .......................... 9

Friestadt, L.E., Title IX vs. NCAA: A Gameplan for

Championship Equity, 25 VAND. J. OF ENTER. &

TECH. LAW 307, 350-51 (2023)............................... 32

President Trump issued,

Executive Order No. 14201 .................................... 20

S. Rep. No. 100-64 ..................................................... 34

1

INTEREST OF AMICUS CURIAE 1

Amici are Riley Gaines and 32 current and

former college athletes identified in Appendix A who

have been harmed by the rules of college sports

governing bodies that have authorized and continue to

authorize men to take women’s places and share

women’s locker rooms, showers and other private

spaces in college sports.

Amici have first-hand knowledge of how the

college sports ecosystem works and an interest in the

preservation of women-only sports teams and the

female category in college sports in the United States.

Amici have experienced that college athletic

association transgender eligibility rules are uniformly

followed by athletic association’s member colleges and

universities and result from top-down decisionmaking imposed by athletic associations and

conferences with which all member schools obediently

comply. Consequently, the transgender eligibility

rules of college athletic associations and conferences

have system-wide discriminatory impacts on women.

Amici have been harmed by the college sports

governing bodies imposing transgender eligibility

rules on federally funded colleges and universities and

at national and conference championships which

college athletic associations and conferences host and

control.

1 Rule 37 statement: No party’s counsel authored any

of this brief; amici and counsel alone funded its

preparation and submission. See Sup. Ct. R. 37.6.

2

SUMMARY OF ARGUMENT

Amici offer their perspective on three issues not

substantially addressed in Petitioners’ Briefs filed

with this Court in Hecox and B.P.J.:

(1) that the policies of collegiate athletic

associations perpetrate privacy and dignitary injuries

and emotional trauma upon female student-athletes

in violation of Title IX in locker rooms, showers,

restrooms, hotel rooms on team road trips, and in

other private places traditionally reserved for women,

providing an independent and sufficient basis for

Idaho’s law (and the laws of other states) which protect

college student-athletes from such harms,

(2) that college athletics associations are

causing current harm to women through their

transgender eligibility rules, demonstrating that

harms suffered by women due to the transgender

eligibility policies of college athletic associations are

capable of repetition while evading review, and

making clear, therefore, that any suggestion by

Respondents that a concern over injuries to women is

mooted by rule changes of the NCAA or any other

organization (or for any other reason) is not well

taken, and

(3) that the Fourth Circuit’s holding in B.P.J.

that “Title IX’s prohibitions are not limited to

organizations that directly receive federal funds: the

statute also covers organizations that ‘control[ ] and

manage[ ]’ direct funding recipients,” B.P.J. by

3

Jackson v. W. Virginia State Bd. of Educ., 98 F.4th

542, 554 (4th Cir. 2024), follows from this Court’s

observation in Nat’l Collegiate Athletic Ass’n v. Smith,

525 U.S. 459, 460 (1999) (Smith I), that entities,

including college athletic associations such as the

NCAA, that control athletics activities of direct

funding recipients can be liable under Title IX.

Amici demonstrate that transgender eligibility

rules adopted by scholastic sports governing bodies

have been rigorously enforced against women, causing

significant emotional and dignitary harms and

depriving

women

student-athletes

of

equal

opportunities and bodily privacy. Such deprivations at

public and federally funded schools constitute a fully

sufficient basis for upholding the challenged laws by

the legislatures in Idaho and West Virginia.

The

promulgation,

application,

and

enforcement of transgender eligibility rules by

scholastic sport governing bodies may subject those

bodies to accountability under Title IX under the

“controlling authority” test and/or the Civil Rights

Restoration Act. Amici submit that the “controlling

authority” test for Title IX liability recognized by the

Fourth Circuit in B.P.J. and previously by this Court

in Smith I should be preserved and ultimately

extended to college sports governing bodies.

4

ARGUMENT

The Ninth Circuit observed:

In the United States, high school

interscholastic athletics are generally

governed by state interscholastic athletic

associations, such as the Idaho High

School Activities Association (IHSAA).

The NCAA sets policies for member

colleges and universities in Idaho and

elsewhere,

including

Boise

State

University (BSU).

Hecox v. Little, 104 F.4th 1061, 1070 (9th Cir. 2024).

This observation is correct. The transgender eligibility

rules of the applicable athletic association (whether

high school or college) invariably become the rules of

each of the association’s member educational

institutions.

Therefore, just as the Ninth Circuit did

(although reaching the wrong conclusion on the

substance and merit of the transgender eligibility

rules), it is reasonable for state legislatures to look to

the eligibility rules of the National Collegiate Athletic

Association (NCAA) to ascertain whether the Title IX

rights of female athletes are likely to be adequately

protected at NCAA member colleges and universities

in their state. When the Idaho Legislature passed its

Fairness in Women’s Sports Act, it saw that the

NCAA’s eligibility policies did not protect women’s

competitive opportunities, as Petitioners’ Brief shows.

The Idaho Legislature would also have seen that the

NCAA’s policies undermined women’s Title IX and

5

constitutional privacy rights at federally funded

colleges and universities in Idaho and throughout the

Country as amici show below, providing a second and

wholly sufficient reason to uphold the Idaho law.

Sadly, as explained below, the NCAA’s revised

transgender eligibility policies today still violate

Title IX by compromising women’s locker room privacy

and safety, and for these reasons, among others,

continue to fail women student-athletes at federally

funded colleges and universities nationwide.

I.

Women

Lose

Privacy

and

Equal

Opportunities When Trans-Identifying

Men Access Women’s Private Spaces

Judge Agee dissenting in B.P.J. warned of a

“runaway train,” trammeling women’s rights not only

on playing fields but in private spaces such as

showers, locker rooms, and restrooms that used to be

safe and legally protected for women. See B.P.J. by

Jackson v. W. Virginia State Bd. of Educ., 98 F.4th

542, 580 (4th Cir. 2024) (Agee, J.) (concurring and

dissenting in part). Amici themselves have been

blindsided in these private spaces due to policies

which ignore their privacy rights. And amici recognize

that rules that favor trans-identifying men over

women will eventually indiscriminately victimize not

just athletes but all women seeking privacy or

protection away from males in private spaces.

Because fundamental interests in women’s

privacy and safety are also a fully sufficient basis to

uphold the Idaho and West Virginia laws and to reject

the reasoning of the courts below, and because the

6

current rules of the NCAA and other college sports

organizations remain a “train wreck” for women, amici

write to describe their own heartrending and

traumatic experiences arising from rules that give

men access to women’s private spaces.

Petitioners in Hecox and B.P.J. focused their

briefs primarily upon male performance advantages

which by themselves fully justify the Idaho and West

Virginia statutes that keep males out of women’s

sports to protect women’s equal competitive

opportunities. But the Idaho and West Virginia laws

should also be upheld for the independently sufficient

reason that female athletes are entitled to not have

their privacy rights pummeled in locker rooms,

showers, restrooms, and other sex-separated spaces

and because men competing against women denies

women equal opportunities by causing emotional and

dignitary harm. The state legislatures in Idaho and

Wyoming were well within their scope to protect

women from these harms and require that the full

panoply of women’s Title IX and constitutional privacy

rights in showers, locker rooms, and other private

spaces be protected.

NCAA transgender eligibility rules showed no

regard for the biology or privacy of women when the

Idaho law was passed and continue today to allow men

in female athlete’s intimate spaces. This Court has

recognized that, “[t]o fail to acknowledge even our

most basic biological differences ... risks making the

guarantee of equal protection superficial, and so

disserving it.” Nguyen v. I.N.S., 533 U.S. 53, 64 (2001).

That women experience emotional trauma

7

when men invade women’s private spaces is not

surprising. The same male physiological advantages of

aggressiveness, physical size, strength and power that

are well described in Petitioners’ briefs and which

create a massive male performance gap on the playing

field also heighten the importance to women of having

safe spaces protected against male physical

dominance. This too is an essential aspect of equal

opportunity for women. The same physical differences

that create massive competitive disadvantages for

women in sport naturally increase the anxiety and

insecurity of women and elevate their personal safety

risks when women’s private spaces are violated

without consent by males.

Furthermore, the importance of protecting

women’s privacy does not arise solely from the need to

protect women against the physical dominance of

males. Every individual has a fundamental interest in

exercising personal autonomy over their body and a

right not to have their genitals exposed to members of

the opposite sex without consent. The interest in

bodily privacy is longstanding in this Country and is

recognized under both Title IX (as explained below)

and in this Court’s equal protection precedents. See,

e.g., U.S. v. Virginia, 518 U.S. 515, 550 n.19 (1996)

(Ginsburg, J.) (explaining that integrating Virginia

Military Institute “would undoubtedly require

alterations necessary to afford members of each sex

privacy from the other sex in living arrangements”).

Title IX’s implementing regulations require

women have “equal opportunity” with respect to

“locker rooms.” 34 C.F.R. § 106.41(c)(7). This requires

“separate” and “comparable” locker rooms and

8

showers, 34 C.F.R. § 106.33. Judge Agee further

correctly noted that these regulations make clear “that

. . . Title IX allows for ‘separate toilet, locker room, and

shower facilities on the basis of sex’ so long as they are

‘comparable’ to one another.” B.P.J., 98 F.4th at 579

(Agee, J.) (quoting 34 C.F.R. § 106.33). Further, “Title

IX’s statutory carve-out from its general prohibition

against sex discrimination applies to ‘living facilities,’

not only bathrooms. 20 U.S.C. § 1686. And the same

regulation that authorizes schools to provide separate

bathrooms on the basis of sex also permits schools to

provide separate ‘locker room ... and shower facilities

on the basis of sex.’ 34 C.F.R. § 106.33.” Adams by &

through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th

791, 816 (11th Cir. 2022). Thus, “it defies logic to

conclude that Congress meant to allow biological boys

who identify as girls to shower with biological girls.”

B.P.J., 98 F.4th at 579 (Agee, J.). When adopting Title

IX and approving its implementing regulations

“Congress clearly intended to affirm certain aspects of

sex separation in education—like in restrooms,

showers, locker rooms, and sports—within its overall

prohibition on sex discrimination.” Id. at 580.

Moreover, “guided by the [Nation’s] history and

tradition,” the Court recognizes and protects rights

that are essential to “our Nation’s concept of ordered

liberty.” Dobbs v. Jackson Women’s Health Org., 597

U.S. 215, 240 (2022); accord United States v. Rahimi,

602 U.S. 680, 690 (2024). It should be uncontroversial

that sex-separated spaces in which girls and women

may undress outside of a male’s presence are deeply

rooted in our nation’s history and essential to a

concept of ordered liberty that recognizes the struggles

9

of women against exploitation, assault, and

harassment. See generally, e.g., W. Burlette Carter,

Sexism in the “Bathroom Debates”: How Bathrooms

Really Became Separated by Sex, 37 YALE L. & POL’Y

REV. 227, 287–88 (2019) (Describing history of sexseparated bathrooms and arguing, “sex-separation

dates back as far as written history will take us. The

bathroom has long been treated as unique public

space, not as space just like any other. The key reason

for the separation was safety and privacy.”); Grimm v.

Gloucester Cnty. Sch. Bd., 822 F.3d 709, 734 (4th Cir.

2016), vacated and remanded, 580 U.S. 1168 (2017)

(Niemeyer, J., concurring and dissenting in part)

(“across societies and throughout history, it has been

commonplace and universally accepted to separate

public restrooms, locker rooms, and shower facilities

on the basis of biological sex in order to address

privacy and safety concerns arising from the biological

differences between males and females” and citing

cases); Adams, 57 F.4th at 805 (same); see also

Houchins v. KQED, Inc., 438 U.S. 1, 5 fn.2 (1978)

(“Inmates in jails, prisons, or mental institutions

retain certain fundamental rights of privacy”); Fortner

v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (“most

people have a special sense of privacy in their genitals,

and involuntary exposure of them in the presence of

people of the other sex may be especially demeaning

and humiliating”).

Yet, the majorities in Hecox and B.P.J. have

decided “that transgender individuals get access to the

restrooms and sports teams of their choosing,”

employing reasoning that makes clear that these

courts have decided that trans-identifying males

10

gaining access to women’s opportunities and safe

spaces is simply “more important than biological

females’ rights to privacy and to play competitive

sports.” B.P.J., 98 F.4th at 580 (Agee, J.). Although,

“[n]o Congress has ever intended such a result,” id.,

some federal courts have regrettably diminished

women’s sex-based rights in sports, and with regard to

privacy, through decisions untethered to the text of

Title IX or this Court’s equal protection precedents in

a line of recent cases of which Hecox and B.P.J. are

merely a part. See, e.g., A.C. by M.C. v. Metro Sch. Dist.

of Martinsville, 75 F. 4th 760 (7th Cir. 2023); Doe v.

Boyerton Area Sch. Dist., 897 F. 3d 518 (3d Cir. 2018);

Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th

Cir. 2020); Parents for Privacy v. Barr, 949 F.3d 1210

(9th Cir. 2020); Whitaker by Whitaker v. Kenosha

Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034

(7th Cir. 2017); but compare D.P. by A.B. v.

Mukwonago Area Sch. Dist., 140 F.4th 826, 833 (7th

Cir. 2025), reh’g granted and opinion vacated,

(Disagreeing with A.C. and Whitaker and endorsing

“view” that “the Eleventh Circuit’s decision in Adams

. . . ‘is closer to the mark.’”); D.P. by A.B. v. Mukwonago

Area Sch. Dist., No. 23-2568, 2025 WL 1794428, at *1

(7th Cir. June 30, 2025) (granting panel rehearing to

consider whether the court should overrule Whitaker,

and A.C. in light of United States v. Skrmetti, 145 S.

Ct. 1816, 222 L. Ed. 2d 136 (2025)).

As Judge Agee recognized, “if the commonly

understood and accepted limits on restroom usage and

sports teams are negated by judicial fiat” there is no

apparent “limit,” to the favoritism that the courts

crossing these boundaries will eventually bestow on

11

men who claim a feminine gender identity. B.P.J., 98

F.4th at 580. And the horror stories resulting from

federal courts’ willingness to strip women of legal

protections in deference to the desires of men are just

beginning. As the Eleventh Circuit recognized,

“equating ‘sex’ with ‘gender identity’ or ‘transgender

status’ for purposes of Title IX, [must], at the very

least, generally impact living facilities, locker rooms,

and showers, in addition to bathrooms, at schools

across

the

country—affecting

students

in

kindergarten through the post-graduate level.”

Adams, 57 F.4th at 816. This makes the experiences of

amici highly relevant. Should this Court not intervene

to correct the federal Circuit Court decisions that

refuse to recognize biological sex as the relevant

dividing line in sports, showers, locker rooms,

restrooms, and other places where sex matters, then

injuries like those of amici described below will

continue to be suffered by other girls and women

around the country.

***

Therefore, this case presents an important and

urgent opportunity to correct the Circuit Court

decisions that have permitted the desire of transidentifying males to inhabit intimate spaces with girls

and women to trump the sex-based rights of girls and

women.

12

A.

Women Were Traumatized After the

NCAA Invited a Man to Compete in

the National Women’s Swimming &

Diving Championships

Last year a special committee of the Georgia

Senate conducted hearings regarding the 2022 NCAA

Division I Women’s Swimming and Diving

Championships (the “National Championships”),

hosted at Georgia Tech University. There, transidentifying male Lia Thomas (formerly Will Thomas)

a previous member of the University of Pennsylvania

(UPenn) Men’s Swimming Team was invited by the

NCAA to compete and given access to the women’s

locker room without advising the female swimmers

that Thomas had access to their locker room. Five

amici, Kylee Alons (North Carolina State University),

Grace Countie (University of North Carolina), Riley

Gaines (University of Kentucky), Reka Gyorgy

(Virginia Tech University) and Kaitlynn Wheeler

(University of Kentucky), who among them have won

more than 65 NCAA All-American honors, testified

before the Senate Committee about the emotional toll

they experienced because the NCAA authorized one

male swimmer to compete against, and share a locker

room and showers with, hundreds of women. 2

2 The videotaped testimony of amici can be viewed at:

https://www.legis.ga.gov/schedule/senate/AQIARgAA

AxpEc5CqZhHNm8gAqgAvxFoJAGeQLC1kSDdIixjC

7EHFmfIAAAJaYgAAANZQGGA2fqFiaHBHrewZqJ

2eET4ABFxyqioAAAAuAAADGkRzkKpmEc2byACq

ACGGA2fEWgMAZ5AsLWRIN0iLGMLsQcWZ8gAA

AlpiAAAA

13

For some of the country’s top collegiate

swimmers, competing against a man in a women’s

championship

was

deeply

disorienting

and

emotionally painful. Thirty-one-time All-American

Kylee Alons testified that she is “still grieving it” more

than two years later.

In the National Championships 500-yard

freestyle final, Thomas beat University of Virginia

swimmer Emma Weyant by more than a body length.

Weyant is one of the best and most technically

proficient female swimmers in the world, a two-time

Olympic silver medalist in the 2021 (Tokyo) and 2024

(Paris) Olympic Games. Kylee Alons testified that,

“Thomas was not a technically proficient swimmer and

had only qualified for the NCAA Championships

because of the physical advantages he possessed as a

man.” Nevertheless, because Thomas was allowed to

compete against Weyant, Thomas “stole the

championship celebration from her, a moment for

which Emma had worked her whole life.” When

competing as a male Thomas was unable to even

qualify for the NCAA Championships. However,

competing against women he won All American honors

in all three events in which he competed, including in

the 200-yard freestyle, an event in which he had not

even been ranked among the top 550 male NCAA

swimmers.

See

generally

https://www.swimmingworldmagazine.com/news/alook-at-the-numbers-and-times-no-denying-theadvantages-of-lia-thomas/.

Thomas prevented multiple women from

receiving All-American honors, including amici Reka

Gyorgy, a Virginia Tech University swimmer and

14

Olympian from Hungary who had also represented her

country in multiple European Championships.

Thomas displaced Reka from an All-American honor

in the 500-yard freestyle event at Reka’s last collegiate

swim meet. Reka explained, “[b]efore 2022 I never had

to prepare myself mentally to swim in competition

against a man who is physically bigger and much

stronger than I am. This isn’t something you can

realistically prepare for or compete with because it

simply is not a fair match.”

Reka wrote a letter to the NCAA explaining how

unfair it is to allow men to compete against women.

Yet, she never received a response. Reka testified, “I

know many who competed against Thomas are still

afraid to speak up. Unfortunately, women are bullied

and harassed if they speak up to defend women’s

spaces from male intrusion. The bullying can be

especially bad on college campuses. But even though a

man beat me in the pool and even though I know some

will criticize me and try to suppress my voice, I have

decided I am going to fight this new and dangerous

philosophy of stealing women’s opportunities to give

them to men.” Kylee Alons said, “[l]ooking back, I can

see even more clearly the injustice of hundreds of

women being required to suppress our feelings to

validate the feelings of one man.”

15

Photo 1: Podium at 2022 NCAA Women’s National

Championships where a man won and took the place

of Reka Gyorgy.

Twenty-two-time All-American Grace Countie

recalled that the pressure of competing in the National

Championships against a male with such enormous

physical advantages caused her to start “shaking” and

to become “so nauseous I thought I was going to throw

up.” It “was the only time in [her] swimming career

that [she] had ever cried before a race.” She spent her

time pre-race “sitting in the ready room trying to

convince myself that what I was going to experience

was normal.” When she dove into the pool she

“black[ed] out” and could not execute her race plan,

she merely went through the motions.

The NCAA’s decision to authorize a man to

compete against them communicated powerfully to the

best female swimmers in the Country that they lacked

worth as women. They were shocked to be stripped of

their right to compete solely against other women and

16

required to submit to a man depriving them of

opportunities for which they had worked their entire

lives.

University of Kentucky swimmer Riley Gaines

described it, “a cruel, traumatizing, psychological

experiment that pretends that it’s fair and just and

compassionate for a man to take from women, that

pretends it is normal for a man to be given access to a

woman’s safe spaces, and that requires women to

accept it all without saying anything lest they hurt the

feelings of the man.” She said it was as if the collegiate

women swimmers were being told, “[i]gnore the threat

of men, ladies. Don’t worry if a guy follows you into the

bathroom. Abandon your instincts that something is

off. Loosen your boundaries, stay quiet and take your

pants off anyways, get undressed, and stay quiet.

That’s the message that we received.”

B.

Rights to Sex-Separated Spaces and

Bodily Privacy Are Violated by

NCAA Rules

Women swimmers at the 2022 National

Championships were traumatized by the presence of a

6-foot four-inch man with fully intact male genitalia in

the women’s locker room. Kaitlynn Wheeler recalled

the first time she learned a man had been given access

to the women’s locker room:

Suddenly, the usual buzz of conversation

in the locker room noticeably shifted to

one of discomfort, awkwardness, and

fear. I turned around, exposed and bare,

while still inching up my racing suit, only

17

to see a very large 6’4” man just 10 feet

from me. I realized it was Lia Thomas. I

was completely shocked and caught off

guard. I immediately reached for my

towel. He put his belongings down near

me and proceeded to pull down his pants

and begin changing in front of me.

I was stuck in the most uncomfortable

position of my life, with only half of my

racing suit pulled up in the presence of a

naked man. This felt far from a normal

experience – it felt extremely wrong. I

glanced around at the other girls and saw

that they too were covering themselves,

trying to huddle on the opposite side of

the locker room as far away from Thomas

as they could get in that small space. I

returned to inching my racing suit up my

torso as quickly as I could manage. As

soon as I could, I left the locker room, still

in shock at what I had just witnessed,

with every fiber of my being crying out in

mental torment and humiliation. I have

never felt more violated and betrayed

than I did at that moment.

Riley Gaines wrote a letter to Georgia Tech

President Angel Cabrera, 3 explaining the continuing

trauma experienced by women whose privacy was not

3 The NCAA granted Georgia Tech’s bid to host the

Championships.

18

respected or protected in the locker rooms at Georgia

Tech:

There is one question that has come back

to me over and over again over the last

two years since I visited your campus as

a 21-year-old college student in 2022:

“Why didn’t you protect me?”

There are images in my mind that I

cannot erase. I wish that I could erase

these images, that day after day make me

feel less safe as a woman. They repeat in

my mind late at night when I’m alone,

when I’m walking a City street by myself

at night, whenever I feel vulnerable,

those images come back and the same

question comes to my mind, “Why didn’t

you protect me?” . . .

Your Georgia Tech University officials

knew a naked adult man with full male

genitalia was being authorized by

Georgia Tech to share a locker room with

hundreds of college-age women who

would themselves be naked, unable to

hide, unable to protect our privacy. This

was intentional. This was premeditated.

It was sexual harassment, and it

happened right here, in the capitol city of

the State of Georgia. . . . Let me be clear.

I label this as sexual harassment because

me and the . . . hundreds of other 18–22year-old college girls were not asked for

our consent and we did not give our

19

consent to being exploited and exposed to

a 6’4” fully naked man. Because you did

nothing, that man walked into our

women’s locker room at your university

and saw me undressed down to full

nudity. . .

The experiences of women swimmers at the

2022 NCAA National Championships vividly

demonstrate the gross unfairness, denial of equal

opportunities, and deprivation of privacy arising from

allowing men to compete on women’s sports teams.

C.

Women’s Privacy Violated by Men in

College Volleyball

Beginning in August 2022, the Mountain West

Conference (a NCAA member conference) authorized

the San Jose State University Women’s Volleyball

Team (“SJSU Team”) to roster Blaire Fleming, a male

who claims a female gender identity. Slusser, et al. v.

Mountain W. Conf., et al., No. 1:24-cv-03155-SKCMDB (D. Colo.), ECF No. 78 (Amended Complaint) ¶¶

319, 326. Fleming had leaping ability and hitting

power far exceeding any female player in the

Conference, especially in spiking and blocking on the

front row. Id. Due to his hitting power Fleming’s

spikes significantly increased the risk of teammates

and opponents being concussed. Id. ¶¶ 415, 417.

Fleming hit women in the face with spikes because

those players could not react to the speed of his spikes

in time. Id. ¶¶ 419, 428.

The SJSU coaches did not inform their women

volleyball players that Fleming was a trans-

20

identifying male athlete. Id. ¶¶ 321-22, 328, 333, 353,

366-70. Consequently, several of Fleming’s teammates

were unaware that Fleming was a trans-identifying

male while they were practicing and competing with

Fleming, sharing a locker room with him, and even

being roomed with him on team road trips.

Consequently, some of these women disrobed in front

of Fleming, which they would not have done had they

known he was male, id. ¶¶ 334-36, 349-50,366-72,

depriving these women of their right to bodily privacy

and sex-separated spaces without their consent. Id.

D.

Current Transgender Eligibility

Policies in College Sports Harm

Women

The NCAA adopted a new transgender

eligibility policy on February 5, 2025, one day after

President Trump issued Executive Order No. 14201

titled Keeping Men Out of Women’s Sports. The new

NCAA policy abandoned the NCAA’s prior

testosterone-based standard for trans-identifying

male eligibility as well as certification and testing

requirements and simplified the path for transidentifying men to participate on NCAA women’s

teams and continue to use women’s locker rooms,

showers, and restrooms. The new NCAA policy fails to

define “women” or “men” based on biological facts,

opening the door to numerous administrability

problems. Instead, the new policy uses the

meaningless and inaccurate term “sex-assigned at

birth,” defined as “[t]he male or female designation

doctors assign to infants at birth, which is marked on

their

birth

records.”

21

https://www.ncaa.org/sports/2022/1/27/transgenderparticipation-policy.aspx.

The new policy has no effective method of

defining and administrating eligibility for women’s

teams that will ensure compliance with Title IX.

Instead, the policy relies on amendable birth records

rather than immutable biology and science. Unlike the

NCAA’s drug testing policies, which subject studentathletes to “year-round testing,” see NCAA Drug

Testing

Manual,

https://ncaaorg.s3.amazonaws.com/ssi/substance/SSI_

DrugTestingManual.pdf at 5, the new policy omits any

reliable process for ascertaining student-athlete sex.

By defining “sex assigned at birth” as the designation

“marked on their birth records,” by failing to define

“woman,” “female,” “man,” or “male” on the basis of

biology, and by failing to apply any reliable, objective,

and biologically-based standard for determining sex –

such as sex screening 4 – the new NCAA policy will

allow men to compete on women’s teams in college

sports if men simply amend their birth certificate to

reflect a female gender identity rather than their sex.

The new NCAA transgender policy expressly

permits athletes “assigned male at birth” to take

opportunities from women by allowing them to

participate on women’s teams and “receive all other

Sex-screening relying on the SRY gene is highly

reliable, non-invasive, relatively inexpensive and used

by sport governing bodies such as World Athletics. See

World Athletics Eligibility Rule 3.5 and Regulation

C3.5A, available at: https://worldathletics.org/aboutiaaf/documents/book-of-rules.

4

22

benefits applicable to student-athletes who are

otherwise eligible to practice.” This means transidentifying men are expressly authorized to access

women’s locker rooms and safe spaces under the new

NCAA

policy.

https://www.ncaa.org/sports/2022/1/27/transgenderparticipation-policy.aspx.

This defect is not theoretical. Just this Spring,

the NCAA’s new policy allowed male athlete Sadie

Schreiner to access the women’s locker room and

practice as a member of the women’s college track

team at Rochester Institute of Technology (RIT),

depriving women of privacy without their consent and

taking coaching time away from amici Caroline Hill, a

member of the RIT’s women’s NCAA Division III track

team. Gaines, et al. v. NCAA, et al. No. 1:24-cv-01109TRJ (N.D. Ga.), ECF No. 131 (Declaration of Caroline

Hill) at 4-5, ¶¶ 19-28.

Moreover, other college sports governing bodies,

like the California Community College Athletic

Association ( “3C2A”), which covers all 112 California

junior colleges with varsity sports programs, have

mandatory transgender eligibility policies, allowing

men who self-identify as transgender to compete in

women’s sports and access their locker rooms. See

https://3c2asports.org/Constitution/202526/Bylaw_1.pdf (Bylaw 11.1). Amici Madison Shaw,

Gracie Shaw and Brielle Galli are all currently

missing their college volleyball seasons and losing a

year of collegiate eligibility due to injury risks arising

from a trans-identifying man playing on their women’s

volleyball

team.

https://readlion.com/santa-rosa-

23

womens-volleyball-players-file-title-ix-complaintover-transgender-athlete/

Under the current policies of the NCAA and the

3C2A female student athletes are still being deprived

of equal opportunities and experiencing a loss of locker

room privacy at colleges and universities from coast to

coast. And because of the shortness of a scholastic

athlete’s career, only two years at a junior college and

four years at the NCAA level, physical, emotional, and

dignitary injuries to athletes arising under Title IX are

the epitome of injuries that are capable of repetition

yet evade review.

***

These are just some of the reasons amici join

Judge Agee in “hop[ing] that the Supreme Court will

take the opportunity with all deliberate speed to

resolve these questions of national importance.”

B.P.J., 98 F.4th at 580. Amici believe the safety and

equal opportunities of not just female athletes but of

all women across the Country depends upon it.

II.

The

NCAA

Enforces

Transgender

Eligibility Rules in College Sport

As the Ninth Circuit observed, the NCAA “sets

policies for member colleges and universities in Idaho

and elsewhere.” Hecox, 104 F.4th at 1070. The NCAA’s

transgender eligibility policies are rigidly enforced by

the NCAA Board of Governors via threats that

member schools not in compliance with NCAA policies

will not host NCAA events.

24

For example, on June 11, 2020, the NCAA

Board of Governors criticized the Idaho Legislature for

passing its Fairness in Women’s Sports Act, saying the

“resulting law is harmful to transgender studentathletes and conflicts with the NCAA’s core values of

inclusivity, respect and the equitable treatment of all

individuals.” The NCAA threatened not to host

championship events in Idaho due to the law. NCAA

statement regarding Idaho transgender law, June 11,

2020,

available

at

https://www.ncaa.org/news/2020/6/11/ncaastatement-regarding-idaho-transgender-law.aspx.

Again, on April 12, 2021, the NCAA Board of

Governors

threatened

to

withdraw

NCAA

Championships from states where “Saving Women’s

Sports” legislation passed. The NCAA stated that

consistent with its “long-standing policy,” “only

locations where hosts can commit to providing an

environment that is safe, healthy and free of

discrimination” would be selected for NCAA

championships. NCAA Board of Governors Statement

on Transgender Participation, April 12, 2021,

available

at

https://www.ncaa.org/news/2021/4/12/ncaa-board-ofgovernors-statement-on-transgenderparticipation.aspx. The reference to “long-standing

policy” was hyper-linked to the NCAA’s transgender

eligibility policy. Id.

On August 3, 2021, the NCAA Board of

Governors adopted a resolution reaffirming the

NCAA’s transgender eligibility policy and its

commitment to make “NCAA Championships . . . open

to transgender athletes who have earned the right to

25

compete for a national title.” Report of the NCAA

Board of Governors August 3, 2021, Videoconference,

available

at

https://ncaaorg.s3.amazonaws.com/committees/ncaa/e

xec_boardgov/AUG2021BOG_REPORT.pdf.

The

Board of Governors further resolved “to require all

hosts of previously awarded championship sites to

reaffirm

their

commitment

to

ensure

a

nondiscriminatory environment for all college

athletes,” and if they could not, to “inform the NCAA

immediately.” Id.

Just this summer, UPenn’s President

explained, UPenn “must comply with … NCAA

eligibility rules, so our teams and student-athletes

may engage in competitive intercollegiate sports,” and

admitted UPenn’s compliance with policies “in

accordance with NCAA eligibility rules” in 2022 which

authorized Lia Thomas to compete in college

swimming caused injuries to women, including

“competitive

disadvantage”

and

“anxiety.”

https://penntoday.upenn.edu/announcements/pennstitle-ix-resolution-us-department-education-officecivil-rights. (Emphasis added.)

III.

College Sports Governing Bodies Violate

Title IX by Adopting and Enforcing

Transgender Eligibility Rules

Title IX applies to “any education program or

activity” that “receives federal financial assistance.”

20 U.S.C. § 1681. Title IX’s “inclusive terminology”

“encompass[es] all forms of federal aid to education,

direct or indirect.” Grove City Coll. v. Bell, 465 U.S.

555, 564 (1984) (cleaned up) (emphasis original).

26

Recognizing the “need to accord Title IX a sweep as

broad as its language,” the Court has been “reluctant

to read into [Title IX] a limitation not apparent on its

face.” Id.

The Fourth Circuit observed that “Title IX’s

prohibitions are not limited to organizations that

directly receive federal funds: the statute also covers

organizations that control and manage direct funding

recipients.” B.P.J., 98 F.4th at 554 (cleaned up) (citing

Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d

265, 272 (6th Cir. 1994); Williams v. Board of Regents

of Univ. Sys. of Ga., 477 F.3d 1282, 1294 (11th Cir.

2007)). Thereby, the Fourth Circuit became the third

federal Court of Appeals to endorse the “controlling

authority” test for Title IX liability, joining the Sixth

and Eleventh Circuits. Id.

The Fourth Circuit held that the West Virginia

Secondary School Activities Commission (“WVSSAC”

or “Commission”) “exercises sufficient control over

direct funding recipients to make it a Title IX

defendant” based on “essentially the same reasons [the

court had] conclude[d] the Commission is a state

actor.” B.P.J., 98 F.4th at 554. These reasons were

that the Commission was “pervasively entwined

enough with public institutions to be subject to suit,”

id. (cleaned up), as evidenced by three factors:

(1) overlap between the Commission’s

board and school officials – i.e., the Commission’s

board consisted of the “principals of every public

secondary school in West Virginia,”

(2) control over sport eligibility criteria –

27

i.e., supervision and control of member schools’

athletics programs “including by determining

eligibility criteria for all interscholastic athletics,” and

(3) authority to regulate athletic events –

i.e., “a West Virginia statute authoriz[ed] schools to

delegate ‘control, supervision, and regulation of

interscholastic athletic events’ to the Commission and

designating dues paid to the Commission by county

boards of education as ‘quasi-public funds.’” Id.

Importantly, the same three factors that led the

Fourth Circuit to find “pervasive entanglement” under

the state actor test and sufficient controlling authority

over federally funded schools for Title IX to cover the

WVSSAC exist in the case of college sports governing

bodies such as the NCAA, 3C2A, and college athletic

conferences. This is important because it is the rules

of these college sports governing bodies coupled with

their ability to require adherence to their rules that is

driving continuing discrimination against women and

depriving women of equal opportunities and bodily

privacy in college sports.

First, college sport governing bodies always

have extensive overlap between their governing board

and officials at the governing body’s member

institutions. For instance, college conferences such as

the Ivy League and Mountain West Conference have

100% governance overlap, with every school member’s

President serving on the Conference’s governing body

and/or the bodies that determine eligibility policy for

the Conference. Mountain West Conference Bylaws,

Article 2.03 (“each Member Institution shall be

entitled to appoint one (1) representative to the Board

28

of Directors. The representative appointed must be the

Chief Executive Officer (President, Superintendent,

Chancellor or similar position) of the Member

Institution.”)

available

at

https://storage.googleapis.com/themwcom/2024/09/9e6b0e71-conference-bylaws.pdf

;

Estabrook, et al. v. Ivy League Council of Presidents, et

al., No. 1:25-cv-10281-WGY (D. Mass.), ECF No. 74-1

at 31 (Ivy Manual, 2023–2024, Appendix A (Ivy Group

Agreement of 1954), Section V.C) (“The Presidents’

Policy Committee shall consist of the eight Presidents

of the subscribing institutions. This Committee shall

have full and final responsibility for the determination

of all agreed policies of the Group and with respect to

the organization and operation of the Committees on

Administration and Eligibility.”). Likewise, there is

extensive college and university representation at

every level of NCAA governance. See generally How

the

NCAA

Works,

available

at

https://ncaaorg.s3.amazonaws.com/championmagazine/HowNCAAWorks/AW_HowNCAAWorks.pd

f. Similarly, 3C2A governance consists of California

community college officials. 3C2A Constitution and

Bylaws - 2024–25, Article 2.4.1 (noting nominees for

3C2A CEO and Board members shall be individuals

who are a “CEO, chancellor, or superintendent or

president” of a California community college)

available at https://3c2asports.org/Constitution/202425/Article_2.pdf.

Second, as explained above, college sport

governing bodies like the NCAA and 3C2A control and

enforce sport eligibility rules for their members.

29

Third, the NCAA, 3C2A, and athletic

conferences regulate athletic events, including by

controlling national and conference championships.

Each of these factors point to Title IX coverage

for college sports governing bodies just as they have

for the WVSSAC and other state high school athletic

associations. See, e.g., Horner, 43 F.3d at 272

(Kentucky); Communities for Equity v. Michigan High

Sch. Athletic Ass’n, 80 F. Supp. 2d 729, 733-35 (W.D.

Mich. 2000) (Michigan); A.B. v. Haw. State Dep’t

Educ., 386 F. Supp. 3d 1352, 1354-58 (D. Haw. 2019)

(Hawaii).

A.

Controlling Authority Test

In 1999, the Supreme Court issued its only

opinion regarding the applicability of Title IX to the

NCAA in Smith I. There the Court said, “if any part of

the NCAA received federal financial assistance, all

NCAA operations would be subject to Title IX.” Smith

I, 525 U.S. at 469.

However, the Plaintiff in Smith I did not

contend below that the NCAA directly received any

federal funding. Rather, the only theory of Title IX

coverage advanced by Smith was that the NCAA

received “dues” from federally funded members. The

Court held this was insufficient because the studentathlete had not alleged that “NCAA members paid

their dues with federal funds earmarked for that

purpose,” therefore proof of the NCAA’s “receipt of

dues” merely “demonstrates that it indirectly benefits

from the federal assistance afforded its members.” Id

at 468. “[T]his showing, without more, [was]

30

insufficient to trigger Title IX coverage.” Id.

One theory of coverage that the Court could not

address in Smith I, because it had not been advanced

below, is the theory ultimately adopted by the Fourth

Circuit in B.P.J. and by the Sixth and Eleventh

Circuits and numerous district courts, that “when a

recipient cedes controlling authority over a federally

funded program to another entity, the controlling

entity is covered by Title IX regardless of whether it is

itself a recipient.” Smith I, 525 U.S. at 469-70. With

respect to the NCAA specifically, the Court observed

in Smith I that the NCAA is “‘created by and

comprised of schools that receive federal funds, and ...

governs its members ‘with respect to athletic rules.’”

Id. at 469 (cleaned up). The Court said this argument

was a potential basis to distinguish the NCAA from an

entity addressed in United States DOT v. Paralyzed

Veterans of America, 477 U.S. 597 (1986), which held

that merely benefiting from a federal funding recipient

does not trigger Title IX coverage. Ultimately, the

Court said “[e]vident as these distinctions may be,

they do not bear on the narrow question we decide

today-whether an entity that receives dues from

recipients of federal funds is for that reason a recipient

itself.” Id.

Bottom line, this Court’s holding regarding

potential Title IX coverage over the NCAA in Smith I

was extremely narrow. It was presumably not this

Court’s last word on the potential Title IX liability of

the NCAA or other scholastic sport governing bodies,

only the first.

31

Since Smith I both the Fourth Circuit in B.P.J.,

98 F.4th at 554, and the Eleventh Circuit in Williams,

477 F.3d at 1294, have held that Title IX applies to

athletic associations that exercise “controlling

authority” over funding recipients. The Eleventh

Circuit adopted the “controlling Authority” test

because “if [it] allowed funding recipients to cede

control over their programs to indirect funding

recipients but did not hold indirect funding recipients

liable for Title IX violations” that would leave a large

loophole in Title IX coverage. Williams, 477 F.3d at

1294. See also Barrs v. S. Conf., 734 F. Supp. 2d 1229,

1230 (N.D. Ala. 2010) (holding an NCAA member

college athletic conference satisfied the “controlling

authority” test).

In Williams, the Eleventh Circuit relied upon

the Western District of Michigan’s analysis in

Communities for Equity, 80 F. Supp. 2d at 73335following the Supreme Court’s decision in Cannon

v. Univ. of Chicago, 441 U.S. 677, 691-92 (1979), which

held that Title IX “was enacted for the benefit of ...

those discriminated against on the basis of sex” as

opposed to simply being a “ban on discriminatory

conduct by recipients of federal funds” or “a

prohibition against the disbursement of public funds

to educational institutions engaged in discriminatory

practices.” Accordingly, the district court held that,

“any entity which has controlling authority over a

‘program or activity receiving Federal financial

assistance’ is subject to Title IX’s antidiscrimination

rule, even if that entity does not itself receive the

federal funds which finance the program or activity.”

Communities for Equity, 80 F. Supp. 2d at 733

32

(quoting 20 U.S.C. § 1681(a)).

One commentator has pointed to the following

factors suggesting the NCAA could be accountable

under the controlling authority test:

The NCAA operates with federally

funded member schools to create

intercollegiate athletics. . . the NCAA is

the governing ‘agency’ for intercollegiate

athletics . . . the NCAA enforces rules

governing intercollegiate athletics [and]

manages and controls the most profitable

assets of the Association—the NCAA

Championships. . . . Based on this degree

of control and management, a court could

find that the NCAA is an indirect

“recipient” of federal aid through its

members and covered by Title IX.

Friestadt, L.E., Title IX vs. NCAA: A Gameplan for

Championship Equity, 25 VAND. J. OF ENTER. & TECH.

LAW 307, 350-51 (2023). Indeed, this commentator

concluded the NCAA “should be subject to Title IX.”

Id. at 350 (emphasis added). But see Smith v. NCAA,

266 F .3d 152, 161 (3d Cir. 2001) (Smith II) and

Cureton v. NCAA, 198 F .3d 107 (3d Cir. 1999) (holding

that the controlling authority test did not extend

coverage to the NCAA on the facts of those cases).

The WVSSAC unsuccessfully relied upon the

Third Circuit’s decision in Smith II to try to avoid Title

IX coverage. However, as neither the NCAA nor a

college conference was a party in B.P.J., the Fourth

Circuit did not consider how the NCAA fares under the

33

controlling authority standard. Instead, the Fourth

Circuit distinguished Smith II by noting “key

differences,” between the NCAA and state athletic

associations which are more relevant to the state actor

analysis than the Title IX controlling authority

analysis, including that “the NCAA spans every state,”

no state had delegated authority to the NCAA to take

action against state employees, and the NCAA did not

have statutory authority like the WVSSAC to control

the athletic programs of its member schools. However,

none of these “key differences” for state actor analysis

goes directly to the factors of: (1) governance overlap,

(2) control over sport eligibility criteria, and (3)

regulation of athletic events, which underlie the Title

IX controlling authority test, and each of which the

NCAA satisfies.

Moreover, as explained above, with respect to

transgender eligibility rules and the administration of

national championships the NCAA plainly does exert

controlling authority making Cureton and Smith II

distinguishable and unpersuasive regarding whether

Title IX constrains the NCAA in the context of issuing

and enforcing nationwide college sport transgender

eligibility rules or when the NCAA applies those rules

in national championships that it conducts for its

members.

***

Because

future

cases

may

present

circumstances in which college sports governing

bodies can be appropriately held responsible under

Title IX for transgender eligibility policies that deprive

women of equal opportunities, amici request that the

34

Court not take any action in the course of deciding this

case that could foreclose further development of the

controlling authority test for Title IX coverage.

B.

Civil Rights Restoration Act (CRRA)

Another potential ground for Title IX coverage

over the NCAA and other scholastic sport governing

bodies, and one that does not rely upon direct or

indirect federal funding to the NCAA or other such

governing bodies, is the Civil Rights Restoration Act

(CRRA).

Congress passed the CRRA to expand the

definition of “program or activity” of a Title IX covered

entity to include “all of the operations of … (4) any

other entity which is established by two or more

[colleges or universities] … any part of which is

extended Federal financial assistance … .” 20 U.S.C. §

1687(4) (emphasis added), Pub. L. No. 100-259, § 2(1),

102 Stat. 28, 28 (1988). “The purpose of the [CRRA] is

to reaffirm broad coverage of [Title IX’s] antidiscrimination provisions.” S. Rep. No. 100-64, at 4

(1987). Grove City limited Title IX to “only the specific

program receiving federal funding,” and not the entire

entity. Smith I, 525 U.S. at 466 n.4. The CCRA

restored Title IX to its full breadth and under it the

NCAA falls squarely within the definition of a

“program or activity.”

The NCAA is such a “program or activity”

subject to Title IX because of its unique structure as

an entity created by “two or more” colleges and

universities whose constituent “part[s]” include

federal funding recipients. The NCAA is an

35

unincorporated association comprised of more than

1,100 member colleges and universities. NCAA

members are primarily (more than 90%) institutions

which receive federal funds and are subject to Title IX.

Thus, most of the NCAA’s “part[s]” consist of federal

funding recipients. Unincorporated associations are

not separate “legal entities” but are no more than the

sum of their individual parts. Underwriters at Lloyd’s,

London v. Osting-Schwinn, 613 F.3d 1079, 1091 (11th

Cir. 2010) (“An association has no legal existence as an

entity separate from its members”) (quoting Calagaz

v. Calhoon, 309 F.2d 248, 251–52 (5th Cir. 1962)

(internal alterations omitted)).

The NCAA or conferences organized as

unincorporated associations and made up mostly (or

like the Ivy League, exclusively) of federally funded

institutions cannot avoid Title IX coverage by arguing

the CRRA’s definition of “part” refers solely to

administrative operations and governance arms of the

association. The phrase “any part of which is extended

Federal financial assistance” is key. The term “part” in

this phrase does not refer only to administrative

operations of the enumerated entities in subparagraphs (1) to (4), but to the entire entity itself.

Thus, “part of which” means part of the entire entity,

which includes every member of an unincorporated

association. Unincorporated associations are by

definition the sum of their member institutions,

Underwriters, 613 F.3d at 1091, regardless of whether

they also have administrative operations run by

executives and staff. Both the operations and the

member institutions are “parts” of the unincorporated

association within the plain meaning of Section 1687.

36

Because many of the NCAA’s “parts” receive federal

funding, Title IX applies to the NCAA via the CRRA.

CONCLUSION

The challenged state laws in Idaho and West

Virginia were appropriate to protect women’s privacy

rights which have been undermined by the rules of

high school and college athletic associations. The

judgments of the Court of Appeals should be reversed.

For the reasons discussed above, the Court

should leave for explication and analysis in future

cases the extent to which college athletic associations

and conferences are covered by Title IX.

Respectfully submitted,

WILLIAM BOCK III

Counsel of Record

Justin R. Olson

KROGER GARDIS AND REGAS, LLP

111 Monument Circle Ste 900

Indianapolis, Indiana 46204

(317) 777-7412

wbock@kgrlaw.com

Counsel for Amicus Curiae

September 19, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

List of Amici Curiae ................................................ A-1

A-1

Riley Gaines* 1

12-time All-American, Swimming, tied Lia Thomas in

the 200 free at the 2022 NCAA Swimming & Diving

Championships – University of Kentucky

Kylee Alons*

31-time All-American, 5-time ACC Champion,

Olympic Trials Semi-Finalist, and 2-time NCAA

Champion, Swimming – North Carolina State

University

Katie Blankinship*

NCAA Swimming Athlete – Roanoke College

Macey Boggs*

NCAA Volleyball Athlete – University of Wyoming

Nicanora (Nicos) Clarke*

NCAA Volleyball Athlete – University of Nevada, Reno

Grace Countie*

22-time All-American, Swimming

North Carolina

– University of

Ellie Eades

NCAA Tennis Athlete – University of Kentucky

Ainsley Erzen

NCAA Soccer and Track & Field Athlete – NCAA Team

Champion, Indoor Track 2024 – University of

* An asterisk by a name indicates that the athlete

knows that she has personally faced a male in sports

competition and/or played or swum on the same team

as a trans-identifying male.

A-2

Arkansas

Grace Estabrook*

NCAA Swimming Athlete - University of Pennsylvania

Ellis Fox

NCAA Swimming Athlete – Texas A&M University

Brielle Galli*

California Community College Athletic Association

Volleyball Athlete – Santa Rosa Junior College

Sierra Grizzle*

NCAA Volleyball Athlete – University of Wyoming and

Texas Tech University

Reka Gyorgy*

Olympian Hungary (Rio 2016), competed in European

Championships – two-time ACC Champion and a twotime NCAA Division I All-American, missed finals by

one placement at NCAA Swim Championships in the

500 free where Lia Thomas won first place, Swimming

– Viginia Tech University

Ellen Holmquist*

NCAA Swimming Athlete - University of Pennsylvania

Caroline Hill*

NCAA Track & Field Athlete – Rochester Institute of

Technology

Margot Kaczorowski*

NCAA Swimming Athlete - University of Pennsylvania

Aleah (Sia) Liilii*

NCAA Volleyball Athlete - University of Nevada, Reno

A-3

Nanea Merryman*

NCAA Volleyball Athlete – Cedarville University

Julianna Morrow*

NCAA Swimming Athlete – Roanoke College

Lily Mullens*

2-time Old Dominion Athletic Conference Champion,

Swimming – Roanoke College

Elle Patterson*

NCAA Volleyball Athlete – San Jose State University

and IU Indianapolis

Kate Pearson*

NCAA Swimming Athlete – Roanoke College

Susanna Price*

NCAA Swimming Athlete – Roanoke College

Kaylie Ray*

NCAA Volleyball Athlete – Utah State University

Jordan Sandy*

NCAA Volleyball Athlete – University of Wyoming

Carter Satterfield*

NCAA Swimming Athlete – Roanoke College

Halle Schart*

NCAA Swimming Athlete – Roanoke College

Gracie Shaw*

California Community College Athletic Association

Volleyball Athlete – Santa Rosa Junior College

A-4

Madison Shaw*

California Community College Athletic Association

Volleyball Athlete – Santa Rosa Junior College

Brooke Slusser*

2-time Honorable Mention All-Mountain West (2023,

2024), Volleyball – San Jose State University and

University of Alabama

Katelyn Van Kirk*

NCAA Volleyball Athlete – Boise State University and

South Dakota State University

Kiersten Van Kirk*

3-time Academic All-Mountain West (2022, 2023,

2024), Mountain West Scholar-Athlete (2023),

Volleyball – Boise State University

Kaitlynn Wheeler*

3-time All-American, Swimming – University of

Kentucky