Still, Enes Kanter Freedom's litigation could have a side effect of generating more public scrutiny of the WNBA's rules.
Former NBA player Enes Kanter Freedom, who contends he should be considered eligible for the 2027 WNBA Draft as a woman, recently sued the Chicago Sky, the City of Chicago and others over an Aug. 23 incident in which he was expelled from attending a Sky-Indiana Fever game in Chicago’s Wintrust Arena as a spectator after he and Sky guard Natasha Cloud exchanged words.
Kanter’s lawsuit isn’t about whether, by saying he identifies as a woman, he satisfies the eligibility rule contained in Article XIII of the WNBA’s CBA. The rule states that “only players who are women are eligible to play in the WNBA.” The word “woman” isn’t defined or clarified, meaning it’s possible an athlete who was assigned male at birth but identifies as a woman meets the requirement.
Kanter v. Chicago Women’s Basketball Operations is instead about whether Kanter’s removal from the game stems from what Kanter calls his “peaceful expression protected by the First Amendment.” He wore a T-shirt to the game that said, “WOMAN noun. adult human female.”
Still, the 34-year-old’s case could lead to legal filings and public statements that spark reconsideration about the eligibility rule.
In a complaint authored by attorney Daniel J. Rhoads of the America First Policy Institute, Kanter says not only was he removed from the game, but he’s been indefinitely barred from returning to the arena.
As Kanter tells it, Sky owner Michael Alter alerted arena security that the former Boston Celtics and New York Knicks big man had suspiciously used a courtside ticket that wasn’t purchased in his name. Kanter, who also played for the Portland Trail Blazers, Oklahoma City Thunder and Utah Jazz, contends his ticket arrangement wasn’t unusual or worrisome. “An untold number of spectators,” the complaint charges, also attended the game using tickets not purchased in their names.
Kanter says Sky fans yelled obscenities at him upon entering the arena, but he remained “peaceful.” That was until the third quarter, when Cloud made a shot and then exchanged words with Kanter. Kanter contends Cloud used obscenities and opined that Fever guard Sophie Cunningham “was not going to sleep” with him.
Kanter insists he “calmly responded” to Cloud by saying, “I’m not trying to sleep with [Cunningham],” who over the summer drew headlines by saying she wants to protect “young girls in sport who shouldn’t have to go against biological men.” Kanter maintains he was only attending the game “to protect women” and support Cunningham. He also points out that while he was ejected, Cloud hasn’t been suspended, fined or otherwise publicly punished.
Legal issues in speech and removal from game
Central to the dispute is whether the Sky had sufficient grounds to toss Kanter.
As a starting point, the team could argue that no court should hear Kanter’s case because tickets to Sky games reportedly contain a mandatory arbitration clause.
The clause requires that “all disputes shall be arbitrated” and that ticketholders waive the right to a jury trial, which Kanter seeks in his complaint. Also, if the ticket holder “does not consent to this clause, the holder must immediately leave or not enter the arena.”
The clause contains an opt-out mechanism that provides a 30-day window from the game date or the date the ticket was purchased, whichever’s earlier. Kanter could raise the same basic arguments in an arbitration, but it would be conducted in private, and awards by arbitrators are difficult to challenge in court because judges are obligated to give high deference to those awards.
Further, the Sky can point to the revocability of Kanter’s game ticket.
Tickets to WNBA games, like tickets to other sporting events, provide revocable licenses to enter, move around, occupy a seat and remain in a facility during a specific game. Without that license, entering and remaining in the facility would constitute trespassing, a misdemeanor-level criminal offense. An arena can revoke a ticketholder’s license and inform the ticketholder they must leave the facility immediately or become a trespasser when the ticketholder breaches a fan code of conduct.
The WNBA has an expansively worded fan code of conduct that applies to league games. It requires fans be respectful and refrain from any “disruptive behavior,” a term that includes, but is not limited to, “foul or abusive language and obscene gestures.” The policy states there is “No Space for Hate” at WNBA games, and ticketholders can’t wear “signs or clothing” that contain “insulting messages.” The code of conduct provides the WNBA with substantial discretion and latitude.
Kanter, however, insists that he didn’t do anything wrong and that his T-shirt, while expressing a viewpoint on a politically contentious issue, and one that some might contend reflects “hate” for trans women athletes, doesn’t contain any obscenities or threats.
Kanter also points out that the Metropolitan Pier and Exposition Authority, a municipal corporation, owns Wintrust Arena, whose website says it is a public-private partnership between the MPEA and DePaul University. In general, publicly owned facilities must adhere to constitutional requirements, including as to protections for speech and expression under the First Amendment. A public entity taking adverse action against a speaker because of their viewpoint is problematic.
However, the situation for Kanter and the Sky is complicated by uncertainty over which entity or entities required that Kanter leave the arena. The Sky and WNBA are private, as is Wintrust Arena’s operator, Oak View Group. Private entities are generally not required to satisfy constitutional requirements.
The Sky could also argue that Kanter wasn’t removed because of his T-shirt, his views about trans athletes or his insistence that he’s eligible for the WNBA Draft, but instead because he argued with a player. The league’s conduct policy requires that “players and fans respect and appreciate each other,” a particularly important point given that children attend games. Also, First Amendment arguments run into problems when speech or conduct could be deemed disruptive.
There are examples of ticket holders being ejected from games for confrontations with players. Earlier this year, a fan at a Detroit Pistons-Cleveland Cavaliers game was ejected from Detroit’s Little Caesars Arena for heckling comments directed at Cavaliers guard Dennis Schröder. Kanter, however, could argue that he wasn’t heckling Cloud, but instead that she responded to him and his T-shirt.
Moving forward and WNBA’s trans eligibility debate
The Sky didn’t respond to a request for comment by the time of publication. The case has been assigned to U.S. District Judge Elaine E. Bucklo, who will preside over a scheduling conference on Dec. 8.
Although Kanter’s case isn’t about his WNBA eligibility aspirations or those of fellow former NBA player Royce White, it is likely to involve commentary about that topic. The topic relates to why Kanter was at the game, his T-shirt and Cloud’s interaction with him.
As Sportico recently explained, the WNBA could argue that Kanter and White, the latter of whom recently claimed to have adopted the name Royesha or Roysha, aren’t women and aren’t eligible. It doesn’t appear the two players seriously identify as women, and they’re arguably attempting to provoke the league and score political points about transgender athletes.
It might prove sensible for the WNBA and WNBPA to bargain for a more detailed eligibility policy to address whether a trans woman is or isn’t eligible. But there is currently no trans woman whom the WNBA would sign.
Julie Tétart, a 34-year-old transgender woman who plays professional basketball for Monaco Basket Association in France’s Ligue Féminine 2, is not reportedly of interest to WNBA teams. There is also no record of a trans woman playing Division I women’s basketball. In short, the theoretical possibility of trans women playing in the WNBA, while of substantial curiosity to some, doesn’t present an actual controversy at this time.