Women had a good run, but now there’s a new sheriff in town.
In a 46-page opinion ordering the national and state-level powerlifting organizations to allow men who have “transitioned” to female to compete as women, a Minnesota judge illustrates everything one needs to know about the contemporary leftist culture, which elevates subjective feelings above objective, scientific fact.
The controversy between transgendered female powerlifter JayCee Cooper (previously Joel Cooper, a biological male) had been percolating for some five years when, on Feb. 28th, Minnesota District Judge Patrick Diamond ordered USA Powerlifting and Powerlifting Minnesota to change their policies prohibiting participants born as male from competing as women, and to permit Cooper, who “in 2015 or 2016” had begun “a process of transitioning to a female identity,” to compete as a female.
At its core, the judge’s ruling reflects the contemporary, liberal notion that the science of biology has no place regarding an individual’s “sexual orientation” to determine either their legal rights (in this instance, pursuant to the Minnesota Human Rights Act), or their rights to participate in organized sports. To Judge Diamond, all that matters is the individual’s “self-identity.”
Thus, it matters not a whit what “sex” appears on an individual’s birth certificate – the document might as well no longer carry any significance. The only factor that, in this case a sporting organization, may legally employ to decide the category in which a member may compete, is what the individual “self-declares” at the time they wish to compete.
The statutory underpinning for the court’s order is the Minnesota Human Rights Act, which defines “sexual orientation” as a person “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.” If, as here, an individual’s “self-image” is at odds with their biological sex, then it is the self-image not the biological fact that prevails.
Throughout the judge’s often repetitive opinion, he pointedly places the term “biological” in quotes, as a not-so-subtle way to emphasize his view that it is a subjective and transitory notion, secondary to however a person identifies themself.
The judge “restated” the key issue at page 15 of his order, noting that the Powerlifting organizations’ “perception of another’s maleness or femaleness, often based on the notion of ‘biological’ sex or what someone responsible for a birth certificate believes they observed, is incongruent with the other’s self-image or identity.” This gobbledygook is deemed by Judge Diamond to be a bona fide “theory” – the “incongruence theory of sex discrimination.”
Such “incongruence” as to base a decision dis-allowing a male athlete to compete as a woman on nothing more than what “someone” (usually a medical professional) wrote on a birth certificate, is ipso facto insufficient to overcome a charge of sexual orientation discrimination.
Powerlift sought to offer expert testimony in support of its policy of not permitting biological males to compete in women’s powerlifting competitions, based on the fact that “persons identified as male at birth tend to be larger and tend to have a greater muscle mass,” and therefore “enjoy an athletic performance advantage, particularly in strength-dependent sports.”
Not surprisingly, such expert testimony, which the judge grudgingly noted might be admitted later in the proceedings but only in an extremely limited way, would not obviate the court’s finding that Powerlift unlawfully discriminated based on sexual orientation. Making matters worse, in denying Cooper the ability to compete in the women’s division, Powerlift improperly failed to consider the acute distress that is said to burden an individual like Cooper, who suffers from “gender dysphoria” due to their personal sense of gender mismatching with that “assigned” to them at birth.
Unfortunately also for Powerlift, their policy of not allowing competitors born as male to compete as female was not sufficiently detailed – it did not, for example, explicitly describe a “performance advantage” but instead relied on common sense and what used to be the scientific fact of biological gender. Experts supporting such an outdated and unenlightened notion would have, for Judge Diamond, “no relevant testimony to offer.”
Powerlift has not yet decided (publicly, at least) whether to appeal the court’s ruling, hailed as “historic” by Gender/Justice, which primarily represented Cooper in the litigation.
In an interview following the court’s ruling, Cooper declared that it would save her and other transgendered women competitors from further “isolation and othering” – whatever that means. Indeed, whatever all this means.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.