By Rachel L. Goodman, Esq., Dylan F. Henry, Kacie E. Kergides, Esq., and Kimberly L. Sachs, Esq. of Montgomery McCracken Walker & Rhoads LLP
(Editor’s Note: The following appeared in Sports Medicine and the Law, a complimentary publication available at https://sportsmedicinelaws.com/)
One Minnesotan powerlifter’s lawsuit shines a light on the inconsistent treatment of transgender athletes in sports.
On January 11, 2021, JayCee Cooper, a 33-year-old transwoman sued USA Powerlifting (USAP), the nation’s largest organization dedicated to competitive squatting, bench pressing, and deadlifting. USAP divides competitors according to age, weight, and gender and matches them up against other athletes who fit into the same categories. Ms. Cooper alleges that USAP violated the Minnesota Human Rights Act by refusing to allow Cooper to compete in its powerlifting competitions because she is transgender.
Cooper’s Success and Distress Competing as a Male
Cooper was raised a biological male. As a child, she participated in a variety of youth sports until middle school, when Cooper discovered that she excelled at curling and pursued the sport at an elite national level through college. In curling and in all other sports, Cooper always competed as a male.
Despite any success, Cooper struggled with her gender identity throughout her athletic endeavors and was diagnosed with gender dysphoria at the age of 26. According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), gender dysphoria is “marked incongruence between one’s experienced/expressed gender and their assigned gender” that causes “significant distress or impairment.”[18] Cooper’s doctors began treating her gender dysphoria using spironolactone, finasteride, and estrogen, drugs that decrease the production of testosterone and minimize its bodily effects. However, a year after her diagnosis, Cooper realized that competing as a male was still causing her significant distress. She subsequently abandoned organized sports altogether.
“Not a Fit for Every Athlete”
In 2018, almost four years after beginning hormone therapy, Cooper returned to organized athletics and began training as a powerlifter. In order to compete nationally, she became a USAP member. Cooper set her sights on two USAP-sanctioned meets in particular: the 2019 Minnesota Women’s State Bench Press Competition and Minnesota Women’s Championship.
However, Cooper never made it to the bench. According to her complaint, USAP banned her participation, citing two protocols under its Transgender Participation Policy (TPP): (1) its ban on spironolactone, as the TPP forbids and will not, under any circumstances, exempt the use of testosterone or other androgens that assist in gender transitions, and (2) its exclusion of transgender women, who may not participate in USAP competitions.[19] The TPP deems USAP “an inclusive organization for all,” but clarifies that the organization “is not a fit for every athlete and for every medical condition or situation.”[20] According to the TPP, “powerlifting is a sport of strength,”[21] and although transgender women “may be weaker” and may have [have] “less muscle” compared to their pre-transition bodies, “the biological benefits given them at birth still remain” and dominate “over” those held by females.[22]
“Spectators in Our Own Sports”: The Debate Over the TPP in the Midwest and Beyond
Cooper’s exclusion under the TPP forms the basis of her discrimination claims, and her story has sparked debate across Minnesota, the entire country, and the world. Supporters of the TPP and similar policies in other sports organizations argue such measures are necessary to ensure women’s equal access to opportunities like athletic scholarships. Former Idaho State University basketball player, NCAA Division I basketball coach, and current Idaho House Representative Barbara Ehardt, for example, warns that allowing transgender athletes to compete as women will erase the progress women in sports have made over the last half-century.[23] Without a ban on transgender athletes, Ehardt cautions, “we will be forced to be spectators in our own sports.”[24]
Opponents of the TPP, in contrast, describe the policy as unnecessary, unscientific, and motivated by bigotry. In a letter to USAP’s executive director and president, United States Representative for the 5th District of Minnesota Ilhan Omar called the notion that transwomen have a competitive advantage over ciswomen a “myth . . . not supported by medical science.” According to Omar, policies like the TPP are in place to “stoke fear and violence against one of the most at-risk communities in the world.” Ehardt and Omar are just two examples of athletes, activists, and politicians who have spoken out about this issue in recent months.
Cooper’s case not only sparks a heated debate, but also exposes the startling inconsistencies amongst organizations’ transgender athlete policies. Consider the case of USA Gymnastics (USAG), which the U.S. Olympic Committee and International Gymnastics Federation designated as the United States’ national governing body for the sport. Unlike USAP, on November 17, 2020, USAG announced that transgender and non-binary athletes competing at the national level “are permitted to compete in the gender category with which they identify without restriction.”[25]
The National Collegiate Athletic Association (NCAA) employs yet another scheme.[26] Its Policy on Transgender Student-Athlete Participation first distinguishes between “transgender student-athletes undergoing hormonal treatment for gender transition” and those not taking any such medication.[27] With respect to athletes undergoing hormonal treatment, trans-male student-athletes with gender identity disorder diagnoses can obtain exemptions to compete as men.[28] Trans-female student-athletes must complete a full year of testosterone suppression treatment before competing as women.[29] For students not undergoing hormonal treatments, the NCAA permits trans-male athletes’ participation on men’s or women’s teams, but bans trans-female athletes from competing as women.[30]
The International Olympic Committee (IOC) takes a fourth approach. Under the IOC’s policy, athletes who transitioned from female to male may compete as males without restriction.[31] However, those transitioning from male to female can only compete as women if they (1) declare their gender identity as female for a minimum of four years; (2) demonstrate total testosterone levels below a certain threshold for at least a year before and throughout the period of competition; and (3) submit to testing by the organization to ensure compliance with the policy. [32] Thus, examples like USAP, USAG, the NCAA, and the IOC reveal the lack of consistency in transgender athlete eligibility requirements amongst the leading sports national and international sports’ organizations.
State laws and federal policy only further complicate this picture. In March 2020, Idaho became the first state in the country to enact a so-called “transgender sports ban” when it passed the Fairness in Women’s Sports Act, which requires publicly funded athletic programs to make exclusions “based on biological sex” and creates a cause of action for “any student who is deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a violation.”[33] The American Civil Liberties Union (ACLU) filed suit to challenge the Act, but analogous legislation has since been introduced in North Dakota, Mississippi, Utah, Tennessee, Montana, Georgia, South Dakota, Arizona, Missouri, Connecticut, New Hampshire, and Oklahoma.[34]
At the federal level, the Biden administration appears poised to embrace an opposing position. On January 20, 2021, his first day in office, President Biden signed an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.[35] Declaring that “all persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the Executive Order explicitly states that “children should be able to learn without worrying about whether they will be denied access to . . . the locker room, or school sports.”[36]
The U.S. Department of Education (DOE) cited this Executive Order on February 23, 2021, when it withdrew a 2020 Trump administration letter filed in connection with Soule v. Connecticut Association of Schools. In Soule, three cisgender female high school students argue that Connecticut deprived them of “honors and the opportunities to compete at elite levels” when it allowed trans-female athletes to compete against them in track and field.[37] The withdrawn DOE letter interpreted Title IX regulations to prohibit transgender female athletes from taking “biologically female” spots on sports teams.[38]
In short, there is little, if any, uniformity in the treatment of transgender athletes in 2021, and consensus appears to be anything but imminent. However, amidst this discord and confusion, the lawsuits in Minnesota, Idaho, and Connecticut make one thing very clear: as policies for transgender athletes continue to be developed and debated, litigation is all but certain to ensue.
[18] A person must also experience at least two of the following symptoms for a minimum of six months in order to be diagnosed with the disorder:
- A strong desire to be rid of one’s sex characteristics
- A strong desire for the sex characteristics of the other gender
- A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender)
- A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender)
- A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender)
https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria
[19] https://www.usapowerlifting.com/transgender-participation-policy/
[20] https://www.usapowerlifting.com/transgender-participation-policy/
[21] https://www.usapowerlifting.com/transgender-participation-policy/
[22] https://www.usapowerlifting.com/transgender-participation-policy/
[23] https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html
[24] https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html
[25] https://usagym.org/PDFs/About%20USA%20Gymnastics/transgender_policy.pdf
[26] https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
[27] https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
[28] https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
[29] https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
[30] https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
[31] https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf
[32] https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf
[33] https://legislature.idaho.gov/sessioninfo/billbookmark/?yr=2020&bn=H0500
[34] https://www.hrc.org/news/these-are-the-states-trying-to-stop-trans-kids-from-playing-sports
[35] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/
[36] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/
[37] https://adflegal.org/case/soule-v-connecticut-association-schools#close
[38] https://adflegal.org/case/soule-v-connecticut-association-schools#close
