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On the local front I have sought to draw attention to the case of JaycCee Cooper v. USA Powerlifting in several posts accessible here. Filed in Ramsey County District Court and assigned to Judge Patrick Diamond, the case raises the question whether USAPL’s separation of men from women in USAPL’s Minnesota competitions must yield to Cooper’s self-identification as a woman.

Although a biological male, Cooper seeks to compete with the ladies. Cooper alleges that USAPL’s refusal to yield to his self-identification as a woman violates the Minnesota Human Rights Act and Judge Diamond agreed.

Physical strength lies at the core of weightlifting. Men are stronger than women. Treating men as women destroys the competition. It is absurd.

As we have seen around the country and around the world, the separation of men and women into separate categories is fundamental to fair athletic competition. Reality asserts its claim. In a variation of the famous cartoon, however, Cooper says he’s spinach and he says to hell with it.

Ramsey County District Judge Patrick Diamond agreed with Cooper. Judge Diamond — he is no gem. He held that USA Powerlifting mistreated Cooper under the terms of the Minnesota Human Rights Act. All that remained to be determined were damages. He granted injunctive relief of his own accord.

USA Powerlifting filed an interlocutory appeal of Judge Diamond’s injunction and determination of liability under the MHRA. The Minnesota Court of Appeals reversed Judge Diamond, holding that “there are genuine issues of material fact with respect to Cooper’s claims of discrimination based on sexual orientation (which is defined by statute to include transgender status)” and “that there are genuine issues of material fact with respect to USAPL’s statutory legitimate-business-purpose defense to Cooper’s claims of discrimination in business.”

This was a 2-1 decision. Judge Jennifer Frisch concurred in part and dissented in part from the panel decision by Judge Matthew Johnson. Judge Frisch agreed with Cooper on the merits of his claims. The panel opinions are posted here.

The Minnesota Supreme Court exercised its discretion to review the case. Holding oral argument yesterday, the Court exhibited all the symptoms of legal dysphoria. The seven members of the court are appointees of Governors Walz and Dayton. No surgery was required. The political dimension has by itself exacted a dumbing down of the court.

The dumbing down is patent in the oral argument that can be viewed online here at the court’s site. For some reason, the Star Tribune omits a link to the video in reporter Jeff Day’s excited story.

Ansis Viksnins represents USA Powerlifting. He is an old acquaintance who has patiently answered my questions about this unreal case along the way. This is the heart of the statement he gave me on the Court of Appeals decision:

USA Powerlifting did not exclude JayCee Cooper from the women’s category because of her gender identity. USA Powerlifting excluded her from competing in the women’s division because of her physiology: she was born biologically male and USAPL does not allow athletes who went through male puberty to compete in the women’s division.

Maintaining separate categories based on sex, age, and weight is necessary so that similarly situated athletes are competing in appropriate categories and have fair opportunities of success. Scientific studies show that athletes who have gone through male puberty enjoy a large strength advantage over athletes who go through puberty as a female. The scientific studies also show that suppressing testosterone only reduces the strength advantage by a very minimal amount. Because powerlifting is a strength sport, the strength differences between competitors who were born male and those who were born female are significant.

Ansis swam against the tide in making his argument before the Minnesota Supreme Court yesterday. I urge readers to tune in to the argument at about 33:00 of the video. Ansis argues that the evidence supports USAPL’s nondiscriminatory motive: “The motive here was to separate biological males into a category where they are competing against other people who were born biologically male…[USAPL] separates competitors three ways: by age, weight, and sex. They do not care about gender identity. They do not care about sexual orientation.”

Justice Sarah Hennesy posed the question that stumped Ketanji Brown Jackson. Like Justice Jackson, Justice Hennesy finds it to be a real brain twister: “Counsel, what is male physiology?” Unlike Justice Jackson, Ansis had no difficulty resolving that brain twister.

Justice Paul Thissen is a former legislator. He is not stupid. With his political background, however, he wanted to explore a compromise. Why not implement “an individualized approach” to the application of sex-based differences? Justice Thissen is apparently dissatisfied with the differentiation among sports and leagues by sex.

Gee, how would that work? Can you flesh that out for us, so to speak? I don’t think so.

Ansis cited a statutory exemption applicable to public accommodations on this point at a critical turn in the argument (at about 45:30). See Goins v. West Group (Minn. 2001).

Chief Justice Natalie Hudson followed up, observing that the space between “transgender man” and “born biologically male” is “very thin” (holding her fingers narrowly apart). The “space” is roughly the space between men and women. It is difficult to believe, but the oral argument descended further.

What we have here is a variation of what Lincoln called the “specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse.” We may have to append a footnote to the effect that Lincoln is using the charged term “man” in its universal sense.

As I will continue to observe in commenting on this case, the Star Tribune published Minnesota Lynx president Cheryl Reeve’s op-ed column celebrating Judge Diamond’s ruling even before the Star Tribune got around to reporting it. Reeve omitted any discussion of the possible participation of “trans women” athletes in the WNBA.

It wouldn’t take many JayCee Coopers to render the WNBA a farce. Reeve could have made a contribution if she had taken up that possibility. As it is, she proved that the welcome mat is out in the Star Tribune’s editorial pages to columns lacking in either evidence or argument. The “correct” attitude will suffice. In this case her column served to let us know where Cheryl Reeve and the Lynx stand on the issue. A column contemplating the possibility of “trans women” populating the WNBA might have given the Minnesota Supreme Court reason to pause over its pending decision in this absurd case.