Katie BarnesSep 18, 2026, 07:13 AM ETCloseKatie Barnes is a writer/reporter for ESPN.com. Follow them on Twitter at Katie_Barnes3.Multiple AuthorsThe 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 wo
Leave a Reply