By Christopher R. Deubert, Senior Writer
In 2021, the National Women’s Soccer League (NWSL) released a Policy on Transgender Athletes which generally permits athletes to participate in the league provided their testosterone levels are within the normal ranges of persons designated female at birth. The policy thus theoretically permits both transgender men and transgender women to participate in the league. The league’s policy stands in contrast to the policies of the global governing bodies for track and field (World Athletics) and swimming (World Aquatics), which have generally banned transgender women based on scientific research conducted in accordance with the International Olympic Committee’s (IOC) framework on the issue.
The IOC’s Framework
In November 2021, the IOC issued its Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations. The IOC’s framework identified ten largely self-explanatory principles it believed organizations in charge of organizing sporting competitions, particularly at the elite level, should take into consideration in crafting eligibility policies: (1) inclusion; (2) prevention of harm; (3) non-discrimination; (4) fairness; (5) no presumption of advantage; (6) evidence-based approach; (7) primacy of health and bodily autonomy; (8) stakeholder-centered approach; (9) right to privacy; and (10) periodic reviews.
IOC rules and policies are generally binding on International Sports Federations, the global governing bodies for sports that participate in the Olympics. Further to that point, the IOC’s framework tasked each sport’s international federation with crafting its own policy based on the principles identified in the framework.
In response, in June 2022, World Aquatics, swimming and diving’s international federation, issued a policy which effectively barred transgender women from participating in elite level women’s competitions – they can only participate if they transitioned from male to female before age 12 or have undergone a minimal amount of puberty. World Aquatics’ policy was informed by the work of a “Science Group,” consisting of “independent experts in the fields of physiology, endocrinology, and human performance, including specialists in sex differences in human performance and in transgender medicine.” The Science Group, after having reviewed “the most up-to-date scientific knowledge” on the issue, “reported that there are sex-linked biological differences in Aquatics, especially among elite athletes, that are largely the result of the substantially higher levels of testosterone to which males are exposed from puberty onwards.”
In March 2023, World Athletics, the international federation for track and field, adopted a substantially similar policy as that of World Aquatics. The policy cited several scientific studies in support.
The American Response
The United States’ representative at the IOC is the United States Olympic and Paralympic Committee (USOPC). Pursuant to federal law, the USOPC is empowered to govern American participation in the Olympics and related international events, including through certifying the national governing bodies (NGBs) for each particular sport in the United States.
In December 2022, the USOPC issued a position statement on transgender athlete participation in sport. Citing the IOC’s framework, the USOPC said the decision on transgender participation must be based on the “guiding principles” of “science-based decisions” and “fairness.” Perhaps most importantly, the USOPC said “[f]or athletes participating in sports during or after puberty,” eligibility decisions should be made “on a sport-by-sport basis.”
Indeed, earlier that year, the NCAA had changed its Transgender Student-Athlete Participation Policy such that eligibility decisions would be made on a sport-by-sport basis according to the policy of the NGB for that sport. Consequently, for example, NCAA swimmers must comply with the World Aquatics policy.
Silence from the World of Soccer
At the time of World Aquatics’ decision, FIFA, soccer’s international federation, said it would review its transgender participation policy. In 2011, FIFA issued gender verification regulations but which do not set testosterone limits or address the scientific issues examined in the World Aquatics and World Athletics policies. Indeed, two-and-a-half years after it said it would review its policy, FIFA has not issued any new guidance. FIFA did not respond to a request for comment as to the current state of its policy review.
U.S. Soccer, the sport’s American NGB, has not filled the gap. The organization has no policy on transgender participation and said it was not aware of any research concerning the participation of transgender individuals in soccer. The USOPC did not respond to a request for comment concerning the same issues.
The NWSL’s Policy
In the absence of a policy from FIFA or U.S. Soccer, the NWSL is well-positioned to continue with its existing policy. That policy, which it describes as an “eligibility policy,” permits “athletes designated female at birth who identify as male (transgender men)” to play in the NWSL if their testosterone levels are “within typical limits of women athletes.” Additionally, the policy permits athletes transitioning from male to female (transgender women) to compete if their testosterone levels have been sufficiently low for at least 12 months prior to competition.
The NWSL’s policy is thus at odds with those of World Aquatics and World Athletics. Notably, the league permits transgender women to play in the league even if they transitioned after puberty. Nevertheless, there are no known instances of a transgender woman playing or seeking to play in the NWSL.
The league has though had at least two players who identify as non-binary: Quinn (formerly Rebecca Quinn) who played for the Washington Spirit and Seattle Reign between 2018 and 2024; and Kumi Yokoyama of the Spirit and NJ/NY Gotham FC from 2020 to 2022. Consequently, at the 2022 Sports Lawyers Association Conference, NWSL Commissioner Jessica Berman explained that the league prefers to avoid gendered terminology and instead simply refer to the league’s “players.” Indeed, Berman has said that the league will not change its policies or values in response to any policies or proclamations from a Trump administration.
The NWSL’s policy is consistent with that of the English Football Association, and which has reportedly enabled approximately 20 transgender women to play at the lower levels of the English soccer system.
The NWSL has nonetheless faced criticism from the transgender community and its allies. Portland Thorns goaltender Bella Bixby has called for the league to drop the “W” from its name, arguing that it is “non-inclusive.” In addition, Quinn has criticized the league’s policy as “problematic,” apparently for relying on testosterone levels to determine eligibility.
The NWSL did not respond to a variety of questions on these issues, including whether it is aware of any research concerning the participation of transgender individuals in professional soccer, whether the NWSL considers its policy to be science-based consistent with IOC and USOPC guidance, its opinion of the World Aquatics and World Athletics policies, the status of FIFA’s policy review, or any possible changes to NWSL policy.
The Potential for Conflict
The question is what happens to the NWSL policy if FIFA or U.S. Soccer adopt a policy similar to those of World Aquatics and World Athletics? U.S. Soccer is a member of and therefore subject to FIFA’s rules. Next, U.S. Soccer’s Professional League Standards require the leagues it sanctions – which includes the NWSL – to “remain in good standing with U.S. Soccer.” More specifically, the Standards state that sanctioned leagues are “subject to U.S. Soccer Federation bylaws and policies.” Consequently, it would seem that the NWSL would have to comply with a revised policy from FIFA or U.S. Soccer on participation by transgender individuals.
Nevertheless, there is no indication that any such policies are forthcoming. Moreover, any policy that would meaningfully restrict participation by transgender individuals (like those of World Aquatics and World Athletics), would likely be opposed by the NWSL and by U.S. Soccer on its behalf. Given the United States’ global importance in women’s soccer, the absence of developments on these issues then seems unsurprising.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
