The WNBA returned to action Thursday night after a three-week break. Congress welcomed the league back by demanding answers about eligibility and accountability.
In a Sept. 17 letter addressed to WNBA commissioner Cathy Engelbert, five members of the U.S. House of Representatives, including a representative from Indiana, criticized the league for not prioritizing player and fan safety. Among the concerns was how the WNBA determines who is eligible to play.
“As a women’s sports league, the WNBA must ensure the League remains exclusively for biological women,” the letter said. “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 around who is eligible to play in the WNBA has raged since Cunningham told ESPN in a July 21 article that she supported restrictions on transgender girls and women in girls’ and women’s sports.
“I got a lot of negative feedback about me hating trans. And I’m like, ‘I never once said that,'” the Fever guard said 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 games across the country in July and August. Former NBA player Enes Kanter Freedom stoked the flames by declaring for the WNBA draft in an Instagram post.
“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 said, wearing an orange WNBA hoodie, in the Aug. 7 video.
The 6-foot-10 Kanter Freedom played 11 seasons in the NBA and last appeared for the Celtics on Feb. 8, 2022. Hours later, former fringe NBA player Royce White also declared for the draft.
Kanter Freedom sat in a baseline seat for an Aug. 23 game between the Chicago Sky and Indiana Fever wearing a black shirt that read, “Woman noun. adult human female.” After scoring on an acrobatic layup in the third quarter, Natasha Cloud walked toward the baseline and yelled at him. Kanter Freedom stretched out his arms and stepped toward Cloud as she was surrounded by teammates and security.
Kanter Freedom was ejected from the game.
While most people in and around the WNBA don’t believe Kanter Freedom and White are acting in good faith, the former NBA players have exposed potential WNBA legal vulnerabilities.
Matt Gaetz, White’s attorney, did not respond to an interview request from ESPN. An interview with an attorney from the America First Policy Institute, which represents Kanter Freedom, was scheduled and then canceled by the institute. An institute spokesperson did not respond to repeated attempts to reschedule.
Cunningham and the Fever return to the court Friday night for the first time since Aug. 28, when White sat courtside at Indiana’s Gainbridge Fieldhouse wearing a blond wig. What could possibly be next?
ESPN spoke to five employment attorneys as well as league and union sources — some speaking on the condition of anonymity — seeking answers.
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 each of the league’s six CBAs beginning with the first in 1999. The document does not elaborate on who the WNBA considers to be a woman or any process by which a transgender woman could become eligible. The WNBA is not alone. The National Women’s Soccer League adopted a gender eligibility policy in 2021 but abandoned 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 told reporters in August. The Professional Women’s Hockey League also operates without a formal policy and there is no statement of eligibility in its CBA.
The policy landscape in elite women’s sports has shifted significantly in the past half-decade. From 2015-21, the International Olympic Committee (IOC) allowed transgender women to compete in the women’s category provided they suppressed their testosterone below a specific threshold for one year. The NCAA operated under a similar policy from 2010-22. Both organizations also had rules for transgender men and intersex athletes. The NCAA has since restricted women’s sports in all three divisions to only those whose birth sex is female. The IOC went a step further, barring transgender and intersex women from women’s competition. The U.S. Olympic and Paralympic Committee has pushed similar bans through the national governing bodies.
Is it legal for a business to require its employees to be a specific sex?
Almost never. But sometimes. Title VII of the Civil Rights Act of 1964 bars discrimination in employment on the basis of a number of traits, including sex. However, it allows for something called a bona fide occupational qualification. It’s defined as a “limited exception for discrimination based on sex, religion, or national origin” if it is a necessary qualification for the business or the job. As an example, opening casting for the title character in “Erin Brockovich” only to women is fine.
So is the WNBA immune to claims of sex-based discrimination?
Not even close. The WNBA, which operates in multiple states, is subject to both state and federal anti-discrimination laws. Title VII states it is unlawful 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 ruled in Bostock v. Clayton County, Georgia, that firing someone “merely for being gay or transgender” violated Title VII.
Members of WNBA teams are not just athletes, they are employees. The legality of a transgender athlete policy in American women’s professional sports has never been litigated.
The WNBA could enact a policy that would bar anyone whose birth sex was not female from playing in the league. Alternatively, the WNBA could enact a policy that would establish a process by which a transgender or intersex woman could play in the league. If challenged, the league and/or the union would have a path in court to argue the policy should 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,” said 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 contain any direction for the league?
The Supreme Court ruled in 2026 that state laws barring transgender women and girls from school and collegiate sports did not violate Title IX. The 1972 law is often invoked as being synonymous with women’s sports, but it bars sex-based discrimination in education, including extracurricular programs, funded by schools. Title IX required schools and colleges to fund girls’ and women’s sports or risk losing federal funding. The WNBA is a private business and not subject to Title IX because it’s not an educational institution.
Has a transgender woman ever played in the WNBA?
No. Two nonbinary athletes have played for WNBA teams, but both of those athletes’ birth sex was female.
What are the paths for a transgender woman to play in the WNBA, and how hard would it be to make the league?
It’s a stretch to think that any up-and-coming American transgender girl or woman would be able to navigate all the obstacles in her way. For one, fewer than half the states allow transgender girls to compete in high school girls’ sports. If a transgender girl played in one of the 21 states that still does allow it, then the door would be closed in college because the NCAA has banned transgender women from women’s competition in all three divisions. Same for NAIA. It’s worth noting that even when transgender girls and women could follow a tried-and-true path, none made it to the WNBA. Take away the coaching and competition benefits in high school and college, and the possibility goes from slim to virtually none.
In theory, a gifted, young trans athlete in the U.S. could find somewhere to play abroad until she’s draft-eligible and then be drafted by a WNBA team. There is a 34-year-old transgender woman currently playing in the second-tier French league who could potentially be eligible for the WNBA, but given her age and that she’s not a top-level player in the country’s best league, she’s not likely to get a look by the WNBA, which is considerably more competitive.
A transgender woman transitioning as an adult or after beginning an athletic career in men’s sports could also seek entry into the league like Renee Richards did in women’s tennis in the 1970s. But that has never happened in the league’s 30-year history.
What has the WNBA said about Kanter Freedom and White’s eligibility for the 2027 draft?
Following a meeting of the league’s anti-hate task force on Aug. 12, the WNBA released a statement, implying that Kanter Freedom and White are 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 statement read in part. The WNBA declined to clarify to ESPN how it came to that determination.
The 2026 CBA does not contain a clear answer. The CBA lays out the criteria for someone to be draft-eligible, but it focuses on age. A player competing in the United States must be turning 22 years old the year of the draft and have no remaining college eligibility or renounce that eligibility. Players are also eligible if they’ve graduated from college, or will within three months of the draft and have either exhausted their eligibility or renounced it. The same is true for players who did not attend college, as long as they are four years removed from high school.
International athletes playing abroad either at the amateur or professional levels are eligible if they will be 20 the year of the draft. If an international athlete plays in the NCAA, they are subject to the same criteria as American players playing collegiate basketball in the United States.
Kanter Freedom, who came 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 high school in 2009 and was in the 2013 collegiate class.
The CBA says that players are eligible for two WNBA drafts and three for late-matriculating international players. Athletes are eligible to be signed as free agents if they have previously been eligible for the WNBA draft. If White and Kanter Freedom had been eligible for a previous draft — which seems implausible considering they never identified as women before — they would now be eligible to be signed.
Can Kanter Freedom and White sue to try and play in the WNBA?
This is where things get interesting. To bring a Title VII claim, Kanter Freedom and White would need to file with the Equal Employment Opportunity Commission (EEOC). The EEOC could investigate, and if it finds cause to believe discrimination occurred, the agency could sue the WNBA. The agency can also, however, opt not to investigate itself and issue a “right to sue” notice to the party alleging discrimination, clearing the way for a lawsuit. According to Oleson, a Title VII claim could be dismissed from court and sent to arbitration if there is a “clear and unmistakable” agreement to handle discrimination claims through arbitration in the CBA.
State employment laws also apply. If Kanter Freedom and White were to press the issue of their eligibility by bringing a state-level claim, and the players’ union agreed with their position, but the league did not, Oleson says that would likely trigger arbitration under the Labor Management Relations Act (LMRA) to decide how “women” should be defined.
“There’s a long line of case authority under federal labor law,” Oleson said. “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, however, the WNBPA and the league both agreed that Kanter Freedom and White were ineligible under the current CBA, LMRA would not apply and a case could proceed to court.
Can teams just quietly agree to not draft or sign Kanter Freedom and White?
If they did, it would violate the CBA. The CBA bars teams from entering “into any contracts, combinations or conspiracies, express or implied, with the WNBA or any other WNBA Team, their employees or agents” to decide who should or should not be offered an opportunity in the WNBA. In other words, the league bars collusion. This is standard practice in professional sports, but there have been accusations of collusion. In the 1980s, for example, the MLBPA accused the owners of colluding to suppress free-agent salaries. The owners paid the union a $280 million settlement in 1990.
Collusion aside, each team could independently decide not to sign Kanter Freedom or White for a variety of reasons. There are players who are good enough to play in the WNBA right now who are not on rosters because of concerns about chemistry, commitment, work ethic or other reasons routinely cited by hiring managers choosing between job candidates. That does not immediately mean WNBA teams colluded to keep them out. Such an allegation would have to be proven, either in court or arbitration.
So what arguments could be made in court?
If Kanter Freedom and White decided to sue to try and force the WNBA to let them play, a relevant legal question would be their identities. When White announced that he would be eligible for the draft, he told 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 game against the Fever, Kanter Freedom is referred to with he/him pronouns and the document says that Kanter Freedom “has self-identified as a player who is eligible to play in the WNBA.” It does not identify him as a woman.
In general, the courts take identity at face value. In states that allow transgender girls to compete in girls’ sports without legal or medical intervention, like Connecticut, it’s not uncommon to require a level of identity authenticity, often proved through school records and how a student presents in school activities. Kanter Freedom and White saying they are transgender would likely be litigated, specifically questioning the authenticity of those 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,” said Susie Cirilli, an employment law expert at Spector Gadon Rosen Vinci P.C. who represents a number of transgender athletes.
Kanter Freedom and White would be deposed under oath. They could be asked to produce medical and psychological records corroborating their claims of being transgender women. Friends, family and agents could also 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,” said another lawyer, requesting anonymity, who has worked on transgender issues.
Kanter Freedom says he meets “every single requirement necessary to compete in the WNBA,” but what about testosterone levels?
There is a robust anti-doping protocol outlined in the CBA. Players are randomly tested at intervals throughout the season for banned substances, including testosterone. There is no publicly available threshold for naturally occurring (endogenous) testosterone in the CBA. The league and union declined to answer questions from ESPN about the process should a player have higher than expected endogenous testosterone.
What policy could the WNBA enact if it did not want to include transgender and intersex women?
The WNBA could choose to enact a policy that defines “woman” as determined by birth sex, specifically requiring an SRY-gene test, which is already being used in some international competitions. An SRY-gene test is a proxy for identifying the presence of a Y chromosome. Transgender women have Y chromosomes because their birth sex is male. However, there are athletes with intersex variations who may also test positive for the SRY-gene.
Andrew Sinclair discovered the SRY-gene in 1990 and has pushed back against its use for this purpose. “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 only legal path forward.
“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,” said Inez Feltscher Stepman, a legal analyst for the Independent Women’s Law Center. “But in some cases, the law requires that you recognize sex.”
What policy could the WNBA enact if it wanted to include transgender and intersex women?
Prior to 2020 when Idaho passed the first law that barred transgender girls and women from girls’ and women’s sports and kicked off a wave of similar legislative and policy changes, sports leagues and governing bodies allowed transgender women to compete in the women’s category under specific conditions. The WNBA could choose to adopt a similar policy that requires testosterone suppression under a threshold for a specific duration.
Similarly, the WNBA could expound upon its definition of “woman” in a way that allows for some intersex women to be eligible.
Any such policy would likely 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 said. “But the result cannot be exclusion that violates federal law.”
If the WNBA opts to codify its policy, how does that process work?
Eligibility to play in the league is collectively bargained, so any change would likely need to be as well. Following the anti-hate task force’s meeting last month, the WNBA said conversations will continue. “We will continue to engage all league stakeholders in the coming weeks and months,” the statement read in part. “We will approach these important conversations thoughtfully and in alignment with the values of our league.”
A major factor for the WNBA is the commissioner. Engelbert announced on Sept. 4 that she plans to depart her role at the end of 2026. Her replacement will be an important voice in the discussion.
That likely makes any substantive policy change a long way off.
The union, when asked by ESPN, declined to comment on its stance on Kanter Freedom and White’s eligibility. Some players, including Cloud, Stefanie Dolson and union executive committee member Brianna Turner, have shown support for transgender inclusion broadly. Most have remained silent. Cunningham, when asked last week by ESPN, did not endorse the NBA players’ eligibility claims.
“I’m gonna let them do them,” she said.
