The WNBA has been warned that silencing paying fans who support keeping women’s sports female could expose the league and its partners to legal liability. Alliance Defending Freedom sent Commissioner Cathy Engelbert a letter after two separate confrontations involving supporters of Indiana Fever guard Sophie Cunningham. The legal group cited possible First Amendment and public-accommodations claims and urged the league to establish viewpoint-neutral rules before another incident occurs.
The August 21st letter followed disputes at Indiana Fever games in Seattle and Atlanta. Teenage fans wearing XX-XY Athletics clothing or carrying signs supporting Cunningham encountered team or league representatives in both arenas. No lawsuit has been filed, but ADF said the incidents could provide grounds for legal claims under certain circumstances.
Cunningham became a prominent voice in the women’s-sports debate after addressing transgender participation during a July interview with ESPN. The Fever guard said she wanted to protect young girls who should not be required to compete against biological males. Her comments prompted supporters and critics to begin displaying competing messages during WNBA games.
The more recent dispute occurred during the Fever’s August 16th game against the Atlanta Dream. As Breitbart reported, Kasey Thomason and her 17-year-old daughter, Annie, attended the game wearing XX-XY Athletics shirts supporting fairness in women’s sports. During overtime, WNBA security personnel reportedly told the mother and daughter to cover their shirts or leave the arena.
The league subsequently acknowledged that its security personnel had improperly restricted the fans’ clothing. “The WNBA is aware of interactions at last night’s game in Atlanta in which fans were asked by league security to cover their shirts,” the league said. “This should not have happened.” The Atlanta Dream also said its employees were not involved in the decision and blamed the encounter on WNBA security.
The Atlanta confrontation came less than three weeks after a similar dispute at Climate Pledge Arena in Seattle. During the Fever’s July 28th game against the Seattle Storm, two teenage girls wore XX-XY Athletics shirts and carried signs thanking Cunningham for speaking up for girls. Storm minority owner Celeste Keaton allegedly confronted the teenagers, used profanity and called them insane, leaving one of the girls in tears. The WNBA later fined Keaton and barred her from attending the team’s next five home games.
ADF’s letter acknowledged that the WNBA and its teams are private organizations that ordinarily are not bound by the First Amendment. The group argued, however, that many of the stadiums where WNBA teams play are publicly owned and were constructed with public funding. Depending on the relationship between the government, arena and league, a court could potentially treat censorship by a private operator as state action subject to constitutional limits.
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The letter also raised possible claims under state and local public-accommodations laws. ADF noted that Seattle prohibits discrimination based on political ideology and argued that targeting fans over political or religious messages about women’s sports could violate those protections. ADF attorney Suzanne Beecher told OutKick that reasonable restrictions may be imposed on how fans express themselves, but those restrictions must be applied equally instead of silencing one side of a disputed issue.
ADF called on the league to clarify its policies and train security personnel, arena employees and other league partners to respect peaceful expression from fans holding different viewpoints. The group also offered to help the WNBA draft rules that could be applied consistently throughout the league. “The WNBA should stand up for women and free expression, not sacrifice them out of fear,” the letter said.
Watch Cunningham start a “USA!” chant here:
Featured image: John Mac, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons