Analysis: Is the Indy-based NCAA serious about gay rights?

When the University of South Carolina men’s basketball team upset Duke University in the second round of the NCAA tournament, some fans traced the Blue Devils’ loss to North Carolina’s so-called bathroom bill.

It’s not so far-fetched. Typically, a top-seeded Duke team could expect to play its opening-round games in North Carolina, and Greensboro had been picked to host again in 2017. But after the passage of a law that prohibited local anti-discrimination protections for LGBT people, the National Collegiate Athletic Association said it would no longer host championships there. The games that were scheduled for Greensboro moved instead to Greenville, South Carolina. In front of a hostile crowd, Duke lost by seven.

The full consequences of the NCAA’s stand on North Carolina’s HB2 are still unfolding. At the time, the organization aligned itself with what seemed like a national movement toward more protections for LGBT people, not fewer. President Barack Obama had expanded rights for federal employees, and the controversial new law wasn’t expected to survive outside pressure or judicial review.

A year later, the NCAA is on less certain footing. The North Carolina law has yet to face a successful court challenge, and a lawmaker there has gone on the offensive, filing a bill to challenge the NCAA’s tax-exempt status. Elsewhere, emboldened by the election of Donald Trump, lawmakers in college-sports strongholds like Texas, Arkansas, Tennessee and Kentucky are considering legislation similar to North Carolina’s.

National debate

As NCAA committees meet next week to discuss which cities will host championships through 2022, the organization finds itself in the middle of a national discussion on civil rights that will test its ability to influence public policy and its commitment to its own stated values.

“This is an extraordinarily murky situation,” said Paul Haagen, co-director of the Center for Sports Law and Policy at Duke University School of Law. “The organization appears to have taken a principled stand without really thinking through the next shoes that might fall. We’re entering deeply uncharted territory.”

State lawmakers have good reason to take the NCAA seriously. Playing host to the men’s basketball tournament is a lucrative opportunity for cities of all sizes, and the Football Championship Subdivision title game generates an estimated $6.5 million a year for Frisco, Texas.

Partly with the NCAA in mind, at least 10 cities with big-time college sports programs have passed local ordinances that actively affirm the rights of LGBT residents. When Jacksonville, Florida, added LGBT protection to its local anti-discrimination ordinance, supporters openly discussed the city’s future as an NCAA host.

It is also top-of-mind in Texas, where the state Senate voted 21-10 last week to approve legislation similar to North Carolina’s. In addition to the football championship in Frisco, Texas cities regularly host NCAA basketball tournament games and other, smaller sports championships. Dallas will host the NCAA women’s Final Four this year. Next year, San Antonio is scheduled to host the men’s Final Four—the potential loss of which figured into the Texas Association of Business’s estimate that the bill, if passed, could cost the state as much $8.5 billion. Others say the economic impact would be lower.

Texas bill

The Texas bill now heads to the state’s House of Representatives, which has yet to discuss it but appears less enthusiastic. The NCAA has not publicly addressed the proposed Texas law. When asked, a spokeswoman gave four reasons that North Carolina’s law required a unique response, including a requirement that people must use the bathroom that corresponds to the gender on their birth certificate.

Texas state Sen. Lois Kolkhorst, sponsor of that state’s bathroom bill and a former collegiate golfer, wrote an op-ed in a local paper explaining that her law was crafted to avoid sanction by the NCAA. While the two bills are similar, there are small differences. For example, Texas’s bill allows would allow the NCAA to establish its own LGBT protections at championship venues. North Carolina’s legislation doesn’t have that provision.

It’s not clear whether that would be enough for the NCAA. That ambiguity doesn’t help LGBT advocates, says Hudson Taylor, founder of Athlete Ally, a group that fights homophobia in sports. “As legislators are putting forth bills without clarity from the NCAA, that is a factor in their decision making,” Taylor said. “This gray area is allowing bad bills to survive and potentially become law.”

If the NCAA were to sanction Texas, the state could fight back, Haagen said. It could sue the governing body for what amounts to an economic boycott. It could also direct its public universities, including sports powerhouses like the University of Texas, Texas Tech, Texas A&M and others, to withdraw their membership from the NCAA.

That would put the schools, which depend both on state money and revenue from their athletics departments, in a bind. “It could lead to a very messy position for these public universities,” said Tyrone Thomas, a Washington-based lawyer at Mintz Levin Cohn Ferris Glovsky and Popeo who advises schools in NCAA cases. “That’s a clear and definitive concern.”

Inconsistent record

History doesn’t offer much guidance. The NCAA’s record on LGBT issues is inconsistent. The not-for-profit threatened to move championship events from its home state of Indiana after former Gov. Mike Pence—now the vice president—signed a bill that some said would allow businesses to refuse service to customers based on their sexuality. The General Assembly later amended the law but did not eliminate it.

That same year, however, the NCAA chose not to move the men’s Final Four from Houston after that city repealed an equal-rights ordinance, making it the biggest American city without full sexuality and gender protections. Meanwhile, as it remains silent on the pending Texas legislation, it has doubled down on North Carolina, saying that “absent any change in the law, our position remains the same.”

All that happened before the NCAA changed its bid process for major events, requiring aspiring host cities to ensure a safe and non-discriminating environment. NCAA President Mark Emmert has repeatedly stood by that change, but the organization has yet to define those requirements. In fact, 28 states and hundreds of cities—including Glendale, Arizona, which hosts the men’s Final Four year—lack civil-rights protections for LGBT people, according to the Human Rights Campaign.

For better or worse, more clarity may be on the way.