Update: Concerns over test causes Lubbock judge to reject Texas’ efforts to force genetic testing for women in college sports

(L-R) Kim Slusser, Kailynn Wheeler and Brooke Slusser after the hearing in a Lubbock courtroom.

The fight in a Lubbock courtroom over genetic screening of women’s athletes between Texas and the National Collegiate Athletic Association (NCAA) came down to one small detail neither side mentioned much during seven hours of testimony Tuesday.

State District Judge Les Hatch listened to emotional testimony from female student athletes – including nationally known Riley Gaines – who participated in women’s college sports and competed against at least one  transgender athlete.

They described feeling cheated and traumatized.

Lawyers for the state of Texas asked Hatch to approve an injunction forcing the NCAA to immediately start genetic screening of all female NCAA athletes who play in Texas – or order the NCAA to stop using the word “women’s” to advertise the sports events.

Four first-round games of the NCAA’s women’s basketball tournament are scheduled in four different Texas cities Thursday.

But women in those games will not face screening after Hatch decided the proposed genetic testing called SRY hasn’t been proven reliable.

The state had Gaines testify over video from Wisconsin and brought three other women to Lubbock to testify but no witnesses to explain the test.

During his closing statement, Thomas Riney, a lawyer for the NCAA briefly – almost off-handedly – pointed out the state never proved genetic testing works.

In his ruling from the bench, Hatch said, “I thought it was going to be a science hearing.”

Hatch mentioned the Olympics abandoned SRY. Although the test is easy to administer – a cheek swab – Hatch said it was unreliable. He wanted to hear the test would actually work.

“[As far as SRY], I don’t think we’re there yet,” Hatch said of the evidence presented in the hearing.

The issue of transgender athletes needs to be heard by the court system and he was honored to be the one to rule on it, Hatch said.

The lawsuit will continue and Hatch said he was not expressing any view of the lawsuit itself in denying the temporary injunction.

So the NCAA is free to continue using a new policy it announced on February 6 based on birth certificates, which led Texas to file the injunction.

The hearing started just before 1:30 p.m. and lasted until after 8:30 p.m. It was part of a lawsuit filed in December in Lubbock’s 237th District Court by the legal team for Ken Paxton, Texas attorney general.

Birth certificates and milk

In Tuesday’s hearing, Rob Farquharson, one of the attorney general’s lawyers, argued 26 states allow people to change a birth certificate.

Riney responded, saying the NCAA uses “sex assigned at birth” on a birth certificate. An altered certificate would not be a loophole.

Riney said there’s no evidence of a biological male competing in NCAA women’s sports from February 6 to the present.

In his ruling, Hatch said, “I think we’re dealing with a very small population [of transgender athletes] here. A birth certificate would have fixed it.”

NCAA President Charlie Baker told a U.S. Senate hearing in December he said there are fewer than ten transgender athletes out of 510,000 NCAA student-athletes.

The state’s attorneys addressed concerns about deceptive trade practices, using milk as an example.

Holding two milk jugs in court, a lawyer for the state said a dairy can sell skim milk and a dairy can sell whole milk. But the dairy cannot mislabel them.

Likewise, the NCAA can have mixed sports and transgender athletes, but it cannot label such competitions as women’s sports.

‘I felt violated, humiliated’

Among the athletes who testified was Kaitlynn Wheeler, a swimmer who was a teammate with Gaines at the University of Kentucky.

When she competed in the 2022 NCAA Swimming and Diving Championships, Wheeler described being in the locked room with Penn’s Lia Thomas.

Thomas was the first transgender athlete to win a NCAA title in the 500-yard freestyle, which became a flashpoint for the debate.

Wheeler described Thomas as a “fully intact” naked man 10 feet away from her.

“[Thomas] fully exposed himself to us while we were simultaneously exposed to him. I truly felt violated, humiliated,” Wheeler said.

The racing suits are skintight and can take 20 minutes to get on, she said.

Only the top eight women advance to the final heat of the championships. Thomas took a spot that should have gone to a biological female, she said.

Brooke Slusser from Denton, a volleyball player first at Alabama and later at San Jose State, testified about being on the same team with transgender athlete Blaire Fleming.

She was made to live with a “dude” who was her teammate at San Jose, she said.

At first, she did not know her roommate was using a tuck kit to hide male body parts. She undressed “countless” times in front of her roommate. She found out when her roommate was the subject of a news article in Reduxx.

“I felt almost very betrayed. I didn’t even tell my family for a while,” Slusser said.

After the Reduxx article, Slusser said there was a team meeting.

“The focus was on how to handle the media and things like that. … The whole season turned into a cover up.”

Four schools forfeited games against San Jose State once they found out Fleming was transgender.

Playing against men is dangerous for women – calling it a “major safety hazard” because men are bigger and stronger, Slusser said. She would not have agreed to play on the same team as a man, she testified.

Her mother, Kim Slusser, also testified, saying, “It’s unfair and it’s dangerous.”

Riley Gaines

Gaines testified she tied with Thomas for fifth place in the 200-yard freestyle event in the 2022 NCAA championships. Her conflict made national news and created a different career.

Her original career plan was to study dentistry in post-graduate education. Instead, she’s an advocate for women’s rights – director of the Riley Gaines Center at the Leadership Institute, headquartered in Arlington, Virginia, she told the court.

Thomas took trophies and honors away from “the best and most accomplished women in the world,” she testified.

Gaines described dedication to her sport – swimming the equivalent of 10 miles a day in practice, “no prom,” “no vacation” and other sacrifices.

In Gaines’ final meet, Thomas took home a trophy. Gaines didn’t. Instead, a trophy was sent to her later.

She was handed a trophy just long enough to be photographed with Thomas according to her testimony.

“The official said, ‘We don’t account for a tie.’ … What do you mean you’re going to give the women’s trophy to a man! You’re going to give my trophy to a guy,” Gaines testified.

“We have been advised it is crucial that Lia be photographed with the trophy,” Gaines quoted an NCAA official saying at the event.

On cross examination, lawyers for the NCAA pointed out Gaines and most of the other witnesses in the Lubbock hearing filed lawsuits of their own. The NCAA wanted to point out the women stand to make money from the legal challenges.

It was not about the money, the women said.

“We filed the lawsuit to hold the NCAA accountable,” Wheeler said in response to that line of questioning.

(This story was updated from the original version published Tuesday night.)

Editorial note: On Wednesday, the Trump administration suspended approximately $175 million in federal funding to the University of Pennsylvania. Penn was quoted as saying it was aware of media reports, but no official notice had reached the school. Lia Thomas, a transgender athlete, swam for Penn. Click here to see more. 

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Author: James Clark- James Clark is the associate editor of Lubbock Lights. He worked in radio, television and digital media for a combined total of more than 30 years. He was Director of Digital News Content at KAMC, KLBK and EverythingLubbock.com for nearly 10 years.

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