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Alliance Defending Freedom, the law firm that recently led two successful Supreme Court challenges to uphold state laws that protect women's sports, has sent a cautionary notice to the WNBA.
ADF sent a letter to WNBA Commissioner Cathy Engelbert Friday after separate incidents involving Sophie Cunningham supporters at games in Seattle and Atlanta.
Suzanne Beecher, legal counsel for ADF, told Fox News Digital that free-speech protections at the federal, state and local levels may apply. Citing the possible use of public funds at WNBA facilities, Beecher said "there could even be First Amendment arguments."
"So there could be cases here," Beecher said.
When asked if she believes civil liberties were infringed upon during the incidents in Atlanta and Seattle, Beecher said, "Absolutely. The fans should be able to go and be respected in voicing their viewpoints."
No lawsuit has been filed. However, the organization is calling on the WNBA to establish clearer policies and train league employees and security personnel to enforce them equally.
"The WNBA claims to stand for female athletes, but we’ve seen recent current events undermine that claim," Beecher said. "We have seen just in the past few weeks that there have been two separate incidents where fans have been silenced or berated when they tried to peacefully express their viewpoint."
The first incident occurred during the Indiana Fever’s July 28 game against the Seattle Storm at Climate Pledge Arena.
Two teenage girls sat courtside wearing XX-XY Athletics shirts and holding signs supporting Cunningham, who had recently spoken out against transgender athletes competing in girls’ and women’s sports.
One sign read, "Thank you Sophie for speaking up for girls!"
Seattle Storm minority owner Celeste Keaton allegedly approached the girls and used profanity while criticizing them. One of the girls was left in tears, according to her family.
The WNBA later fined Keaton and barred her from attending the Storm’s next five home games. The Storm also apologized and said everyone who attends its games deserves to feel welcome.
A similar dispute unfolded Aug. 16 during the Fever’s game against the Atlanta Dream.
Kasey Thomason and her teenage daughter, Annie, wore XX-XY Athletics shirts to the game. During overtime, WNBA security personnel told them to cover the shirts or leave the arena, the family said.
A third fan wearing a shirt supporting transgender rights was also told to cover it.
The WNBA subsequently acknowledged that security personnel had improperly restricted the fans’ clothing.
"The WNBA is aware of interactions at Sunday 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 said its employees were not involved.
"The Atlanta Dream believes in creating a safe and inclusive environment for everyone. Unfortunately, at last night’s game, WNBA security took actions that fell short of that standard," the team said. "At no point was Dream personnel involved in the decisions made by WNBA security." The league reportedly informed the security workers that their actions were improper.
Beecher called the statements an important first response but said the Atlanta incident demonstrated that the WNBA had not done enough after the confrontation in Seattle.
"I think it’s absolutely a first step for the WNBA to say at least that they don’t stand behind what happened in those incidents, but the fact that after the first time they, you know, they said that they didn’t stand behind the co-owner’s berating of the teenage girls, but then again a few weeks later a similar incident occurred shows that more needs to be done," Beecher said.
"The WNBA needs to clarify their policy, educate their staff and partners that they need to respect the viewpoints of people regardless of what those beliefs are that they’re, that the fans are expressing."
Beecher acknowledged that the league may impose reasonable limits on how fans express themselves. She argued, however, that those restrictions must be enforced without favoring one position in the transgender-athlete debate.
"You can, you can have reasonable restrictions on the manner in which things are expressed, but it needs to be equal across the viewpoints being expressed," Beecher said. "It can’t be that one, one side of the argument is silenced while the other side is amplified."
The dispute comes as the WNBA considers whether to clarify its player-eligibility rules.
The league’s collective bargaining agreement states that "only players who are women are eligible to play in the WNBA," but it does not define the term based on biological sex or gender identity. Engelbert recently told team officials that a task force of presidents and general managers would continue discussing transgender participation. She said the league’s eligibility rules are collectively bargained.
Beecher said ADF also wants the league to resolve that question.
"So I think another step is providing clarity to their players and their future players on who’s eligible to compete in the WNBA," Beecher said. "Is it limited to females?"
Engelbert said Thursday that people were attempting to use the league to "sow divisiveness" and turn it into a "political football." She also denounced what she called "haters" targeting the league amid the debate. Her remarks came before the Fever played the Dallas Wings.
Beecher said ADF would prefer to work with the WNBA to prevent future conflicts instead of immediately pursuing litigation.
"The preferred path would be to have this be a stepping off stone for the WNBA to make sure that going forward they’re really respecting the rights of all fans," she said.
OutKick reached out to the WNBA for a response to the letter and Beecher’s claims.
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