NWSL’s transgender player policy needs work

On Transgender Day of Visibility, the National Women’s Soccer League announced their new policy on transgender and nonbinary athletes - a bit of a misnomer, given the policy does not mention nonbinary athletes in the body of its text. They joined a small but growing movement towards acknowledging that trans and nonbinary people play sports, and that some of them are already playing, and will continue to play, at the elite or professional level. The National Women’s Hockey League has a trans athlete policy, while Athletes Unlimited has a trans and nonbinary athlete policy. Triathlete Chris Mosier’s site TransAthlete keeps a comprehensive list of international and domestic policies.

Now it’s NWSL’s turn, as they cited a commitment “to creating a safe, non-discriminatory, and inclusive environment for all of its athletes while maintaining competitive equity throughout the league.” While it’s a positive sign that the league tried to address inclusion for trans and nonbinary athletes, the policy as written is still problematic in several areas.

Reading through the document, there are several items that stick out right away. From the bizarre rule requiring those who identify as female to continue to do so for four years for “sporting purposes,” as though to prevent someone from flip-flopping between gender identities to gain competitive advantage, to formalizing a way to challenge someone’s gender identity, it tends to read like a protocol for cis people to know how to police trans people’s bodies.

NWSL’s policy says people designated female at birth (DFAB), regardless of their gender identity or gender expression, are eligible to compete in the NWSL. Athletes who are DFAB who undergo masculinizing Hormone Replacement Therapy (HRT) are ineligible to compete in the NWSL.

Athletes who are designated male at birth (DMAB) are eligible to play in the NWSL provided they: declare their gender identity is female and demonstrate testosterone serum levels within “typical limits of women athletes” for at least 12 months before competing (set at 10 nmol/L according to current standards and subject to change based on changing expert medical information).

Trans male athletes in the NWSL can take low doses of testosterone as long as their levels remain within the typical limits enumerated above, and this use is therapeutic as determined by the league in consultation with the athlete’s doctor. The language in the document around permissible levels of testosterone are identical to that currently used by the International Olympic Committee, which set guidelines in 2015 that athletes who are undergoing feminizing HRT must also demonstrate total testosterone level below 10 nmol/L for at least 12 months prior to their first competition.

According to the Mayo Clinic, average total testosterone for men age 19 or older can range from 8.3 to 32.9 nmol/L, while women age 19 or older tend to range from 0.3 to 2.1 nmol/L. However, a 2014 study of elite athletes published in Clinical Endocrinology concluded that “hormone profiles from elite athletes differ from usual reference ranges,” and that the IOC definitions of normal testosterone levels for women are “untenable.”

When asked about everyone who was involved with the development and drafting of this policy, a spokesperson from the league initially said that they worked with Asaf Orr, senior staff attorney and transgender youth project director for the National Center for Lesbian Rights in the drafting of this policy. Orr said a draft of the policy was initially brought to him around late September to early October of 2020 by NWSL general counsel Lisa Levine, and that he worked on it with the league up to January of 2021. Some of the areas he was involved were determining player eligibility and the confidentiality language, as well as some “comments around the margins” about adding certain terms.

On a call with Levine, when asked what the impetus was for the league to draft a policy for trans players she said, “The origin was really based on the fact that we didn’t have a transgender [player] policy, and we identified a need to do that. We want to make sure as a league that we’ve got a safe and inclusive environment for our players to play in.” A player in the league did not request the policy, as far as Levine was aware; this was something that “as part of the league, that we would need to undertake and should undertake,” according to Levine.

Levine said in her research for drafting the policy, she reviewed many of the existing trans athlete policies. “We took a look at the FA’s policy on transgender people in football, we looked at the National Women’s Hockey League policy, we looked at the USGA, at the LPGA, at USA Boxing, USA Cycling, the IOC, you know. I can go on,” she said. She then brought the policy draft to the NCLR and Orr.

Orr pointed out that the NCLR has worked to represent trans athletes before, including Jazz Jennings and Fallon Fox, and that the NCLR works in coalition with various trans rights groups including TransAthlete, a resource created by triathlete Chris Mosier, The Transformation Project, The Transgender Rights Project of GLBTQ Advocates & Defenders, and Gender Spectrum. The NCLR’s Sports Project partnered with the NCAA 11 years ago through former NCLR director Helen Carroll to help develop their policy on trans athletes, and their Transgender Youth Project has worked with state high school athletic associations and rec leagues to adopt policies for trans athletes.

Logistics aside, within the text of the policy itself, some issues are immediately apparent:

• Its rule about acceptable hormone levels is invasive and doesn’t just police trans women’s bodies, but all women’s bodies, by forcing a certain band of numeric values on the definition of what is “woman” enough. Though uncommon, there are cis women who have elevated testosterone levels above the “average” band of values. These women would not be asked to test their hormone levels, provide sensitive medical information to the league, nor be forbidden from playing. Nor are testosterone serum levels the scientific be-all end-all of determining physical strength and athletic ability.
• Its language around gender identity being “a core, hard-wired component” is clunky and not reflective of many lived experiences with fluid or evolving gender identities.
• Despite being labeled as a nonbinary-inclusive policy, the policy in fact does not mention nonbinary athletes anywhere in the text.
• The section on “challenges” is dehumanizing and may allow other clubs to “challenge” an athlete on the basis of their personhood. Furthermore, despite the league’s naively well-intentioned stipulation that they will only accept challenges made in “good faith,” there is very little chance a team making an eligibility challenge against a trans or nonbinary player is in fact engaging in good faith, rather than dealing in suspicion and prejudice. The people making this good faith determination will presumably be league officials, who are also very likely to be cis themselves, adding another layer of possible gatekeeping. Unless a club somehow has access to a player’s private medical information, bringing suspicions, essentially, of “doping” to the league would be based on rumor or misunderstanding, and in the case of using someone’s private medical information, may open up the league to HIPAA issues as well. The challenge policy in fact opens the door to allow any club to wield transphobia as a cudgel.

When asked about cis women not being challenged on testosterone levels even though they may also have an elevated level outside the average, Orr said, “I hear that concern. I think based on sort of what we know now, I think that was clear in the policy is that this is based on what we know now and that will change as further study comes out. And this is not a policy that would address you know, folks with intersex conditions or cisgender women who have naturally high testosterone.” He added, “It is consistent with other sports governing bodies in the context of professional and elite athletics.”

This position isn’t quite consistent with the latest trans athlete policy endorsed by Mosier himself, which was put together by Athletes Unlimited and is linked above. Athletes Unlimited is a network of leagues that includes softball, indoor volleyball, and lacrosse. Mosier pointed out that the AU policy, which does not include rules about specific testosterone levels, “prioritizes inclusion and privacy and allows an athlete to self-assess their own eligibility, without requiring invasive disclosure.” AU’s policy does have a section that allows for AU to ensure that athletes are in compliance, but does not frame this as being a status that is open to formalized “challenge” by other clubs or players.

When asked about the section on clubs being able to make challenges against a trans or nonbinary player’s eligibility being a process that may be misused, Orr pointed to the section of the policy that says such challenges cannot be made during the season, precisely to avoid the misuse of policy in a case of “sour grapes” or retaliation. However the policy does not include if there is any kind of censure or punishment for requests they find to be in bad faith.

“In considering any challenge,” said Levine, “We would, of course, work with the athlete who the challenge was based on, with their medical providers, with outside experts…. The decision wouldn’t rest with just one person’s view, there would be a lot of different sources taken into consideration.” She also said that the league would certainly be concerned about confidentiality and the potential release of medical information.

“I understand the criticism,” Orr said, “But I don’t see this as any different from anyone being able to choose any other player or a club being able to challenge the eligibility of another player. So for example let’s say a player hears that another player is taking some performance enhancing medication. They can raise that within the league and say look, I heard this rumor, I’m concerned, and the league will take that seriously and this should be seen as no different.”

The difference is that alleging someone is taking PEDs is not the same as challenging someone’s gender-affirming health care, and treating the two as analogous creates a false equivalence, one that adds to transphobic beliefs that trans and nonbinary athletes are somehow “duping” everyone in order to win. Alleging that someone taking gender-affirming hormone therapy is doing so simply to cheat at sports is insulting.

All for XI also asked Levine several other questions about the specific wording of the policy, including if she had considered including language to prevent or punish spurious claims, or if based on the policy’s wording, NWSL would be able to overrule a doctor’s approval of testosterone for therapeutic use.

“I don’t feel like I’m in a position to say that the league would or wouldn’t do something without being able to actually have the facts in front of us,” Levine said. “Each case would be a case-by-case basis. The purpose of the policy was to provide some guidelines or guardrails to help provide a safe place for players who may want to avail themselves of the policy.”

“As to criticism of the policy, we’re always welcoming of feedback,” said Levine. “And within the policy itself, it allows us to update based on newest medical advances. And so we certainly continue to do so and continue to work with our players’ associations to try to have the best and most inclusive policy possible.”

She added, “Hopefully, what it does is provide some security for a transgender player. It also provides some certainty with respect to the eligibility criteria.”

The fact of the matter is, this document, while needed, will also not be widely applicable, and as such should take into account what is actually good, inclusive policy and what is an attempt to get ahead of transphobic fearmongering about swathes of men disguising themselves as women in order to gain a competitive advantage. The New York Times recently reported an estimated 50 transgender athletes out of 200,000 women in college sports, no openly trans woman has yet qualified for the Olympics, and there is one openly nonbinary person playing in NWSL right now. To be quite frank, most trans and nonbinary players are going to get winnowed out of the player pool long before they ever reach eligibility the same way that cis people get winnowed out. It’s just astonishingly hard to be a pro athlete no matter how you identify. Here’s to hoping that the league truly is open to being agile and adaptive with this policy.