'Women’s sports are legal': Female athletes challenge trans activists at Minnesota Supreme Court

In the absence of NCAA rules limiting eligibility for women's college volleyball to females, several teams forfeited games against San Jose State University this season without explicitly citing a player on SJSU's team who allegedly is a transgender athlete. 

The University of Nevada overruled its team this week when players voted to forfeit its Oct. 26 match against SJSU, claiming a forfeit would violate state and federal law and NCAA and Mountain West Conference rules, but promised not to punish individuals for sitting out.

Female powerlifters, by contrast, have the support of USA Powerlifting, which limits eligibility for women's powerlifting to females. One strength training website lists males as significantly stronger than females at all weights and experience levels of powerlifting.

But the federation may not be able to keep males out of women's competition at least in the North Star State, under a case pending at the Minnesota Supreme Court.

Competing batches of friend-of-the-court briefs have flowed into the state's highest court, most recently this week by supporters of female-only eligibility. It's weighing plaintiff JayCee Cooper's appeal after the Minnesota Court of Appeals reversed and remanded a trial ruling in the transgender athlete's favor this spring, finding unresolved "genuine issues of material fact."

The crux of the dispute is whether USAPL's exclusion of athletes from women's competition on the basis of having undergone male puberty, as Cooper did, is a "legitimate business purpose" under the Minnesota Human Rights Act (MHRA) or prohibited discrimination on the basis of sexual orientation, which includes "transgender status," and sex, which does not.

The federation said Ramsey County Judge Patrick Diamond "independently and of his own volition" forced it to cease operating in Minnesota at the time of the ruling, a year and a half ago. 

USAPL's initial response to Cooper's bid to compete in the women's division mentioned gender identity – "Male-to-female transgenders" – but also said male competitors have a "direct competitive advantage" regardless of cross-sex hormones, as Cooper was taking. (The athlete was seeking a "therapeutic-use exemption" to the federation's strong anti-drug rules.)

Prodded by Cooper for clarification, USAPL said "male puberty confers an unfair competitive advantage over non-transgender females due to increased bone density and muscle mass from pubertal exposure to testosterone," according to the appeals court ruling.

USAPL told the court it knew Cooper had gone through male puberty because the athlete's exemption application indicated Cooper "transitioned in her 20s" and had been treated for gender dysphoria for five years before joining USAPL at age 31. 

Even if it didn't know, as Cooper claimed, an incorrect "asserted non-discriminatory reason is not discriminatory," the appeals court said in a footnote.

USAPL filed its brief last week, arguing that "powerlifting is inherently dependent on strength" and athletes who undergo male puberty "have up to a 64 percent performance advantage over female-born competitors in strength, muscle mass and bone density," which hormone therapy only reduces by 10%.

Without "common sense and science-based competition categories based on sex, age and weight ... strength-based sporting competitions will become pointless," USAPL President Larry Maile said in a written statement.

The federation pointed to support from multiple celebrity athletes including "59x Grand Slam Champion" Martina Navratilova and Olympic gold medalists Nancy Hogshead-Makar, Donna de Varona and Summer Sanders.

Several briefs were filed on behalf of female athletes who have competed unwillingly against males in their sports, and in some cases lost more than victories.

The Upper Midwest Law Center is representing the Independent Women's Forum and North Carolina volleyball player Payton McNabb, who testified before her Legislature on her ongoing health problems from a male player spiking the ball in her face. McNabb and Navratilova toured with IWF on its "Take Back Title IX" bus.

"A later medical evaluation revealed that the ball’s impact had caused a concussion, brain bleed, and severe head and neck injuries," the brief says. "McNabb continues to suffer the long-term effects from these injuries, including vision problems, memory loss, and partial paralysis to the right side of her body."

Cooper's "view of what the MHRA requires – men competing against women – would devastate the separate category of women’s sports by reducing playing time and available scholarships for female athletes," and as McNabb shows, put their "life in danger." It's also superfluous because the federation offers an open category, the brief says.

The high court has long held that "a protected trait 'actually motivated' the defendant’s actions" under the MHRA, and such evidence is missing here, the brief says. USAPL's "real allocating mechanism is sex," which is why it accepts females who identify as men and bans athletes "using testosterone or other androgens" regardless of the prescription's purpose.

"I can’t believe we have to say this, but women’s sports are legal," Independent Women’s Law Center Director May Mailman said in its parent IWF's press release.

Alliance Defending Freedom is representing former Idaho State University track athlete Madison Kenyon, who sought to intervene in the ACLU's lawsuit against the Gem State's sex-based athletics law, as well as Connecticut high school track star Chelsea Mitchell, who challenged the state's male eligibility for women's sports and was "beaten repeatedly" by two males with mediocre records in men's competition, and former powerlifter Beth Stelzer.

"Careful science has now firmly established what human experience has always known," according to their brief. "A meaningful [male] advantage exists even before puberty, increases dramatically during puberty, then persists" regardless of later testosterone suppression. 

"Male advantage is dramatic in strength-based athletic competitions such as powerlifting – threefold that of running," the female athletes claim, citing research on the lightest males "routinely outlift[ing] women even in the higher weight categories" and Olympic weight-lifting records showing "men are 30% stronger than women of the same body mass."

Even if Cooper had actually specified "how long, how consistently, or what testosterone levels have been achieved and sustained" through testosterone suppression, "those details would be immaterial" to "the athlete’s mechanical advantages in size, bone configuration, and lung and heart capacity" and puberty-derived "strength and performance advantages," the brief says. 

It notes that transgender powerlifter Anne Andres, "who began hormonal treatments only after the age of 20, in a single day broke [three] Canadian women’s records" and that American transgender swimmer Lia Thomas slowed down by only 5% after 24 months of "self-reported" suppression, while the "systematic male advantage is 10% or far greater across all sports."

An earlier round of briefs supported Cooper and male eligibility for women's sports under the banner of gender identity, which Cooper's lawyers at Gender Justice posted.

"Transgender women have been competing on sports teams alongside cisgender women [females] for decades," the ACLU and its state affiliate assert, and Minnesota was the first state to "expressly enact civil rights protections on the basis of gender identity" in 1993.

"Excluding transgender women and girls from women’s and girls’ spaces, including athletics, is based on the incorrect factual and legal premise that transgender women and girls are the same as men and boys," the brief says, without using any version of the word "science" while putting "biological males" in scare quotes.

The National Women's Law Center accused the appeals court of "upend[ing] the MHRA’s purpose by relying on pernicious tropes to exclude trans women from sports because of their trans status" and played the race card as did the mainstream media when boxer Imane Khelif dominated women's Olympics competition this year amid controversy over whether the fighter was genetically male or female. 

The discrimination Cooper suffered "promotes racist and sexist stereotypes about femininity that encourage gender policing of all women in sports and public spaces – undermining the MHRA’s broad remedial purpose," the brief says.

"These stereotypes paint women as inherently inferior to men and devalue them if they do not meet white-centric standards of femininity that require them to be weak, submissive, and focused on domestic life and childcare," and "undergird pretextual justifications for excluding women of color and LGBTQI+ people from sports," NWLC says.