As former NBA players Enes Kanter Freedom and Royce White say they want to be eligible for the 2027 WNBA Draft, and as commentators debate Indiana Fever player Sophie Cunningham wanting to protect “young girls in sport who shouldn’t have to go against biological men,” the possibility of a transgender woman seeking entry into the WNBA has become a news topic.

It’s one that raises interesting legal questions even if there’s no indication that a court would need to answer those questions anytime soon.

“It’s a challenging eligibility issue for the WNBA on several levels,” attorney Alan Milstein, who litigated on behalf of Maurice Clarett in his eligibility lawsuit against the NFL and who has represented other high-profile athletes in cases, told Sportico. “The league has a stake in protecting its core purpose of delivering the highest-level women’s basketball, and it also has a diverse fan base and has promoted inclusivity.”

Article XIII of the WNBA’s CBA states that “only players who are women are eligible to play in the WNBA.” The CBA doesn’t define “women,” and thus doesn’t address whether an athlete who was assigned male at birth, but who identifies as a woman, meets the requirement.

There are two matters: one involves Kanter and White, and the other involves the topic more broadly.

Analyzing Kanter and White’s plans

Kanter and White saying they identify, or want to identify, as women to play in the WNBA indicates they’re trying to satisfy an eligibility rule. Whether they actually identify as women is questionable. If a court ever considered a lawsuit by Kanter or White to gain eligibility, there would likely be skepticism about how genuine their identity claims are.

Also, a player being eligible for the league doesn’t mean a team will sign that player. No WNBA team might want to sign Kanter or White, especially if teams are suspicious about the two men’s gender identity claims.

If excluded from the WNBA, Kanter and White could argue they were victims of collusion. The WNBA CBA has an anti-collusion provision in Article XVI, and it contemplates compensatory and punitive damages.

But like in other pro sports, a team not wanting to sign a player isn’t proof of collusion. Collusion requires a secret agreement involving teams and the league to deny employment; a team deciding to not sign a player doesn’t cut it.

Analyzing a potential legal challenge

The prospect of a trans woman who is skilled enough at basketball to play in the WNBA and who seeks employment in the WNBA is uncertain and, for now, speculative.

The WNBA has never had a trans woman player. Layshia Clarendon, who played in the WNBA from 2013 to 2024, was the league’s first nonbinary player but was not a trans woman, as she was assigned female at birth.

There is also no record of a trans woman playing Division I women’s basketball. Kye Allums became the first transgender athlete to play D-I basketball as a trans man on George Washington’s women’s team. Despite the topic attracting a good deal of political commentary, there are relatively few transgender athletes in college sports. In 2024, NCAA president Charlie Baker estimated there were fewer than 10 transgender athletes out of 510,000 active college athletes, or less than 0.002%.

One transgender woman, 34-year-old Julie Tétart, plays professional basketball for Monaco Basket Association in France’s Ligue Féminine 2. It doesn’t appear that a WNBA team has tried to sign Tétart.

Still, the hypothetical prospect of a trans woman player in the WNBA has sparked debate. WNBA commissioner Cathy Engelbert recently wrote a memo to teams saying the league recognizes that transgender athletes present a “complex and nuanced topic” and mentioned league and WNBPA officials will “continue to have important discussions” with stakeholders.

Like other major sports leagues, the WNBA’s eligibility rule is collectively bargained and thus protected by the non-statutory labor exemption. The exemption shields bargained rules related to wages, hours and other working conditions from antitrust scrutiny. Although there are fairness questions in using an eligibility rule negotiated by a league and union to exclude a prospective player who, because of the rule, can’t be a union member, labor law permits it. An athlete excluded because of the WNBA’s rule would face an obstacle arguing it violates antitrust law.

The WNBA also can’t unilaterally modify the CBA to clarify how to define “women,” or else it would potentially violate labor law. Changes to the CBA would require amendment as agreed to by both the league and the union.

There are other areas of law that could give rise to legal claims by a trans woman deemed ineligible to play.

Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment decisions on the basis of sex and other demographic categories, could be used by the athlete to claim she has been denied a position because of her sex and gender identity. In 2020, the U.S. Supreme Court held in Bostock v. Clayton County that Title VII covers workplace discrimination on the basis of sexual orientation and gender identity. The athlete might also cite state and municipal laws that prohibit sex discrimination in the workplace.

As for a possible Title IX claim, it would be difficult to raise in light of the U.S. Supreme Court’s recent ruling in Little v. Hecox and West Virginia v. B.P.J. The Court held that Title IX doesn’t compel schools to “allow certain biological males to participate in women’s and girl’s sports” or make exceptions for athletes “who identify as female and have taken puberty blockers or hormones.”

The WNBA would be armed with potential defenses if the league doesn’t want to permit transgender women to play. It could argue that being a biological woman is a bona fide occupational qualification (BFOQ). In a narrow band of workplace situations, a BFOQ allows an employer to use sex, religion or age to exclude candidates from a job when the job has necessary requirements.

To that end, the WNBA could argue that sex is integral to its brand and its system for competition, and that it markets itself as providing opportunities to women athletes. However, that type of argument would be subject to rebuttals, including that the WNBA has emphasized inclusivity.

Courts are generally skeptical of so-called BFOQ defenses, though sometimes they’re upheld, such as with mandatory retirement ages for pilots or rules requiring prison guards be the same sex as inmates. 

In the sports world, it’s been more than 50 years since Bernice Gera won her case against a minor league baseball rule prohibiting women from umpiring. She showed that an umpire being a man is not necessary for the job and thus excluding her on that basis was illegal.

The WNBA and WNBPA could decide to allow transgender women to play and establish requirements to ensure that applicants have been transgender for a period of time. Such requirements would likely then exclude the likes of Kanter and White from playing.

For now, the possibility of a transgender athlete playing in the WNBA is more hypothetical than actual. Yet at some point the WNBA’s eligibility rule could become a legal dispute, which gives the WNBA and WNBPA reason to consider elaborating on its eligibility requirement.