Does the law back Enes Kanter Freedom’s WNBA draft bid?
The WNBA returned to motion Thursday night time after a three-week break. Congress welcomed the league back by demanding solutions about eligibility and accountability.
In a Sept. 17 letter addressed to WNBA commissioner Cathy Engelbert, 5 members of the U.S. House of Representatives, together with two representatives from Indiana, criticized the league for not prioritizing participant and fan security. Among the issues was how the WNBA determines who’s eligible to play.
“As a women’s sports league, the WNBA must ensure the League remains exclusively for biological women,” the letter stated. “As Sophie Cunningham has commented, women should not have to face biological men playing in the WNBA. Opening eligibility to biological men would not only create an unfair advantage but would also risk player safety for the women playing in the WNBA.”
Debate round who’s eligible to play in the WNBA has raged since Cunningham informed ESPN in a July 21 article that she supported restrictions on transgender women and girls in ladies’ and girls’s sports activities.
“I got a lot of negative feedback about me hating trans. And I’m like, ‘I never once said that,'” the Fever guard stated in the article. “I think that I am here to extend love. But I also think with that love is truth, being honest. And I want to protect young girls in a locker room or young girls in sport who shouldn’t have to go against biological men.”
Demonstrations supporting and criticizing Cunningham popped up at Fever video games throughout the nation in July and August. Former NBA participant Enes Kanter Freedom stoked the flames by declaring for the WNBA draft in an Instagram publish.
“If simply declaring who you are is all that’s required, then I meet every single requirement necessary to compete in the WNBA,” Kanter Freedom stated, sporting an orange WNBA hoodie, in the Aug. 7 video.
The 6-foot-10 Kanter Freedom performed 11 seasons in the NBA and final appeared for the Celtics on Feb. 8, 2022. Hours later, former fringe NBA participant Royce White additionally declared for the draft.
Kanter Freedom sat in a baseline seat for an Aug. 23 recreation between the Chicago Sky and Indiana Fever sporting a black shirt that learn, “Woman noun. adult human female.” After scoring on an acrobatic layup in the third quarter, Natasha Cloud walked towards the baseline and yelled at him. Kanter Freedom stretched out his arms and stepped towards Cloud as she was surrounded by teammates and safety.
Kanter Freedom was ejected from the recreation.
While most individuals in and round the WNBA do not consider Kanter Freedom and White are appearing in good religion, the former NBA gamers have uncovered potential WNBA authorized vulnerabilities.
Kanter Freedom launched the following assertion to ESPN by way of a spokesperson at the America First Policy Institute: “Under the current WNBA rules, I am one of the most eligible players to be considered for the upcoming draft. I am not going to allow the league or the teams to conspire against me to deny me opportunities that their own collective bargaining agreement allows, nor am I going to allow the league or the arena to prevent freely exercising my First Amendment rights.”
Matt Gaetz, White’s legal professional, didn’t reply to an interview request from ESPN.
Cunningham and the Fever return to the courtroom Friday night time for the first time since Aug. 28, when White sat courtside at Indiana’s Gainbridge Fieldhouse sporting a blond wig. What may presumably be subsequent?
ESPN spoke to 5 employment attorneys in addition to league and union sources — some talking on the situation of anonymity — in search of solutions.
Who is eligible to play in the WNBA?
The 2026 CBA states that “only players who are women are eligible to play in the WNBA.” Similar clauses have been in every of the league’s six CBAs starting with the first in 1999. The doc doesn’t elaborate on who the WNBA considers to be a lady or any course of by which a transgender girl may change into eligible. The WNBA shouldn’t be alone. The National Women’s Soccer League adopted a gender eligibility coverage in 2021 however deserted it in 2022. “Our policies are our practice, which is that every player who plays in this league has been determined to be eligible, and we’re continuing to apply that on a consistent basis,” NWSL commissioner Jessica Berman informed reporters in August. The Professional Women’s Hockey League additionally operates with out a formal coverage and there’s no assertion of eligibility in its CBA.
The coverage panorama in elite ladies’s sports activities has shifted considerably in the previous half-decade. From 2015-21, the International Olympic Committee (IOC) allowed transgender ladies to compete in the ladies’s class offered they suppressed their testosterone under a particular threshold for one yr. The NCAA operated underneath an analogous coverage from 2010-22. Both organizations additionally had guidelines for transgender males and intersex athletes. The NCAA has since restricted ladies’s sports activities in all three divisions to solely these whose start intercourse is feminine. The IOC went a step additional, barring transgender and intersex ladies from ladies’s competitors. The U.S. Olympic and Paralympic Committee has pushed comparable bans by way of the nationwide governing our bodies.
Is it authorized for a enterprise to require its staff to be a particular intercourse?
Almost by no means. But generally. Title VII of the Civil Rights Act of 1964 bars discrimination in employment on the foundation of a lot of traits, together with intercourse. However, it permits for one thing referred to as a bona fide occupational qualification. It’s outlined as a “limited exception for discrimination based on sex, religion, or national origin” if it’s a mandatory qualification for the enterprise or the job. As an instance, opening casting for the title character in “Erin Brockovich” solely to ladies is ok.
So is the WNBA resistant to claims of sex-based discrimination?
Not even shut. The WNBA, which operates in a number of states, is topic to each state and federal anti-discrimination legal guidelines. Title VII states it’s illegal for an employer “to fail or refuse to hire or to discharge any individual … because of such individual’s race, color, religion, sex, or national origin.” In 2020, the Supreme Court dominated in Bostock v. Clayton County, Georgia, that firing somebody “merely for being gay or transgender” violated Title VII.
Members of WNBA groups are usually not simply athletes, they’re staff. The legality of a transgender athlete coverage in American ladies’s skilled sports activities has by no means been litigated.
The WNBA may enact a coverage that might bar anybody whose start intercourse was not feminine from enjoying in the league. Alternatively, the WNBA may enact a coverage that might set up a course of by which a transgender or intersex girl may play in the league. If challenged, the league and/or the union would have a path in courtroom to argue the coverage needs to be permissible as a bona fide occupational qualification.
“What the WNBA would argue, I think, if they were presented with this issue, is, you know, the essence of our business is we are a women’s sports league, so therefore we can restrict this,” stated Nathan J. Oleson, an employment lawyer and shareholder at Littler Mendelson. “They can use that sort of defense to argue we only want women who were assigned female at birth, or we want to define women to include transgender females and define where on the spectrum we determine that those people become women.”
Does Title IX include any route for the league?
The Supreme Court dominated in 2026 that state legal guidelines barring transgender ladies and ladies from faculty and collegiate sports activities did not violate Title IX. The 1972 law is usually invoked as being synonymous with ladies’s sports activities, nevertheless it bars sex-based discrimination in schooling, together with extracurricular packages, funded by colleges. Title IX required colleges and schools to fund ladies’ and girls’s sports activities or danger shedding federal funding. The WNBA is a non-public enterprise and never topic to Title IX as a result of it is not an academic establishment.
Has a transgender girl ever performed in the WNBA?
No. Two nonbinary athletes have performed for WNBA groups, however each of these athletes’ start intercourse was feminine.
What are the paths for a transgender girl to play in the WNBA, and the way arduous wouldn’t it be to make the league?
It’s a stretch to suppose that any up-and-coming American transgender lady or girl would be capable of navigate all the obstacles in her approach. For one, fewer than half the states enable transgender ladies to compete in highschool ladies’ sports activities. If a transgender lady performed in one in all the 21 states that also does enable it, then the door could be closed in school as a result of the NCAA has banned transgender ladies from ladies’s competitors in all three divisions. Same for NAIA. It’s value noting that even when transgender women and girls may observe a tried-and-true path, none made it to the WNBA. Take away the teaching and competitors advantages in highschool and school, and the chance goes from slim to nearly none.
In idea, a gifted, younger trans athlete in the U.S. may discover someplace to play overseas till she’s draft-eligible after which be drafted by a WNBA group. There is a 34-year-old transgender girl at present enjoying in the second-tier French league who may probably be eligible for the WNBA, however given her age and that she’s not a top-level participant in the nation’s finest league, she’s not more likely to get a glance by the WNBA, which is significantly extra aggressive.
A transgender girl transitioning as an grownup or after starting an athletic profession in males’s sports activities may additionally search entry into the league like Renée Richards did in ladies’s tennis in the Seventies. But that has by no means occurred in the league’s 30-year historical past.
What has the WNBA stated about Kanter Freedom and White’s eligibility for the 2027 draft?
Following a gathering of the league’s anti-hate activity drive on Aug. 12, the WNBA launched a press release, implying that Kanter Freedom and White are usually not eligible to be drafted. “There are no immediate eligibility matters affecting the WNBA and we strongly denounce the bad-faith efforts to use these topics to demean or marginalize others,” the assertion learn partly. The WNBA declined to make clear to ESPN the way it got here to that dedication.
The 2026 CBA doesn’t include a transparent reply. The CBA lays out the standards for somebody to be draft-eligible, nevertheless it focuses on age. A participant competing in the United States should be turning 22 years outdated the yr of the draft and haven’t any remaining school eligibility or resign that eligibility. Players are additionally eligible in the event that they’ve graduated from school, or will inside three months of the draft and have both exhausted their eligibility or renounced it. The identical is true for gamers who didn’t attend school, so long as they’re 4 years faraway from highschool.
International athletes enjoying overseas both at the novice or skilled ranges are eligible if they are going to be 20 the yr of the draft. If a global athlete performs in the NCAA, they’re topic to the identical standards as American gamers enjoying collegiate basketball in the United States.
Kanter Freedom, who got here to the United States from Turkey to play basketball when he was 17, was 20 in 2012. Royce White grew up in Minnesota. He graduated highschool in 2009 and was in the 2013 collegiate class.
The CBA says that gamers are eligible for 2 WNBA drafts and three for late-matriculating worldwide gamers. Athletes are eligible to be signed as free brokers if they’ve beforehand been eligible for the WNBA draft. If White and Kanter Freedom had been eligible for a earlier draft — which appears implausible contemplating they by no means recognized as ladies earlier than — they might now be eligible to be signed.
Can Kanter Freedom and White sue to try to play in the WNBA?
This is the place issues get attention-grabbing. To carry a Title VII declare, Kanter Freedom and White would want to file with the Equal Employment Opportunity Commission (EEOC). The EEOC may examine, and if it finds trigger to consider discrimination occurred, the company may sue the WNBA. The company also can, nonetheless, decide to not examine itself and problem a “right to sue” discover to the occasion alleging discrimination, clearing the approach for a lawsuit. According to Oleson, a Title VII declare could possibly be dismissed from courtroom and despatched to arbitration if there’s a “clear and unmistakable” settlement to deal with discrimination claims by way of arbitration in the CBA.
State employment legal guidelines additionally apply. If Kanter Freedom and White had been to press the problem of their eligibility by bringing a state-level declare, and the gamers’ union agreed with their place, however the league didn’t, Oleson says that might seemingly set off arbitration underneath the Labor Management Relations Act (LMRA) to determine how “women” needs to be outlined.
“There’s a long line of case authority under federal labor law,” Oleson stated. “It says because we have such a strong interest in this country in allowing unions and employers to figure out their disputes based on the processes they’ve agreed to, that if there’s a dispute about what ‘woman’ means under the [WNBA] CBA, that goes to arbitration. It doesn’t go straight to the court system.”
If, nonetheless, the WNBPA and the league each agreed that Kanter Freedom and White had been ineligible underneath the present CBA, LMRA wouldn’t apply and a case may proceed to courtroom.
Can groups simply quietly comply with not draft or signal Kanter Freedom and White?
If they did, it could violate the CBA. The CBA bars groups from coming into “into any contracts, combinations or conspiracies, express or implied, with the WNBA or any other WNBA Team, their employees or agents” to determine who ought to or shouldn’t be supplied a chance in the WNBA. In different phrases, the league bars collusion. This is normal observe in skilled sports activities, however there have been accusations of collusion. In the Nineteen Eighties, for instance, the MLBPA accused the homeowners of colluding to suppress free-agent salaries. The homeowners paid the union a $280 million settlement in 1990.
Collusion apart, every group may independently determine to not signal Kanter Freedom or White for a wide range of causes. There are gamers who’re ok to play in the WNBA proper now who are usually not on rosters due to issues about chemistry, dedication, work ethic or different causes routinely cited by hiring managers selecting between job candidates. That doesn’t instantly imply WNBA groups colluded to maintain them out. Such an allegation must be confirmed, both in courtroom or arbitration.
So what arguments could possibly be made in courtroom?
If Kanter Freedom and White determined to sue to try to drive the WNBA to allow them to play, a related authorized query could be their identities. When White introduced that he could be eligible for the draft, he informed Fox News Digital, “I’m transgender. I’m a woman. I identify as sometimes identifying as a woman for purpose of basketball, professional basketball, so I’ll be declaring for the WNBA draft in 2027 as well.”
In a lawsuit filed on Sept. 3 arguing the Chicago Sky violated his First Amendment rights when he was ejected from the Aug. 23 Sky recreation in opposition to the Fever, Kanter Freedom is referred to with he/him pronouns and the doc says that Kanter Freedom “has self-identified as a player who is eligible to play in the WNBA.” It doesn’t establish him as a lady.
In common, the courts take id at face worth. In states that enable transgender ladies to compete in ladies’ sports activities with out authorized or medical intervention, like Connecticut, it is not unusual to require a stage of id authenticity, typically proved by way of faculty information and the way a scholar presents at school actions. Kanter Freedom and White saying they’re transgender would seemingly be litigated, particularly questioning the authenticity of these claims.
“And then you know what would be discoverable? Any and all text messages, communications, emails, phone calls that they have had about this topic and about this stunt,” stated Susie Cirilli, an employment law knowledgeable at Spector Gadon Rosen Vinci P.C. who represents a lot of transgender athletes.
Kanter Freedom and White could be deposed underneath oath. They could possibly be requested to provide medical and psychological information corroborating their claims of being transgender ladies. Friends, household and brokers may be deposed.
“It would be my strong expectation that if a person claims to be transgender and alleged a legal claim and the defendant could establish that the plaintiff was not transgender, that would suffice to defeat the claim,” stated one other lawyer, requesting anonymity, who has labored on transgender points.
Kanter Freedom says he meets “every single requirement necessary to compete in the WNBA,” however what about testosterone ranges?
There is a sturdy anti-doping protocol outlined in the CBA. Players are randomly examined at intervals all through the season for banned substances, together with testosterone. There isn’t any publicly out there threshold for naturally occurring (endogenous) testosterone in the CBA. The league and union declined to reply questions from ESPN about the course of ought to a participant have increased than anticipated endogenous testosterone.
What coverage may the WNBA enact if it didn’t need to embrace transgender and intersex ladies?
The WNBA may select to enact a coverage that defines “woman” as decided by start intercourse, particularly requiring an SRY-gene check, which is already being utilized in some worldwide competitions. An SRY-gene check is a proxy for figuring out the presence of a Y chromosome. Transgender ladies have Y chromosomes as a result of their start intercourse is male. However, there are athletes with intersex variations who may additionally check constructive for the SRY-gene.
Andrew Sinclair found the SRY-gene in 1990 and has pushed back in opposition to its use for this goal. “Using SRY to establish biological sex is wrong because all it tells you is whether or not the gene is present,” Sinclair wrote in The Conversation. “It does not tell you how SRY is functioning, whether a testis has formed, whether testosterone is produced and, if so, whether it can be used by the body.”
For some, exclusion is the solely authorized path ahead.
“In most cases, sex doesn’t matter for the law, and in fact, taking it into account is what the law is trying to prevent,” stated Inez Feltscher Stepman, a authorized analyst for the Independent Women’s Law Center. “But in some cases, the law requires that you recognize sex.”
What coverage may the WNBA enact if it needed to incorporate transgender and intersex ladies?
Prior to 2020 when Idaho handed the first law that barred transgender women and girls from ladies’ and girls’s sports activities and kicked off a wave of comparable legislative and coverage modifications, sports activities leagues and governing our bodies allowed transgender ladies to compete in the ladies’s class underneath particular circumstances. The WNBA may select to undertake an analogous coverage that requires testosterone suppression underneath a threshold for a particular period.
Similarly, the WNBA may expound upon its definition of “woman” in a approach that enables for some intersex ladies to be eligible.
Any such coverage would seemingly be litigated.
“There’s always been requirements to do a job, and so this is just the next thing that lawyers, and people in the league need to put their heads together on,” Cirilli stated. “But the result cannot be exclusion that violates federal law.”
If the WNBA opts to codify its coverage, how does that course of work?
Eligibility to play in the league is collectively bargained, so any change would seemingly must be as nicely. Following the anti-hate activity drive’s assembly final month, the WNBA stated conversations will proceed. “We will continue to engage all league stakeholders in the coming weeks and months,” the statement read partly. “We will approach these important conversations thoughtfully and in alignment with the values of our league.”
A significant component for the WNBA is the commissioner. Engelbert introduced on Sept. 4 that she plans to depart her position at the finish of 2026. Her substitute shall be an necessary voice in the dialogue.
That seemingly makes any substantive coverage change a great distance off.
The union, when requested by ESPN, declined to touch upon its stance on Kanter Freedom and White’s eligibility. Some gamers, together with Cloud, Stefanie Dolson and union government committee member Brianna Turner, have proven assist for transgender inclusion broadly. Most have remained silent. Cunningham, when requested final week by ESPN, didn’t endorse the NBA gamers’ eligibility claims.
“I’m gonna let them do them,” she stated.