(The Center Square) — Payton McNabb, a high school volleyball player in 2022 injured from the volleyball spike of a boy playing girls sports, is filing a friend of the court brief to the Minnesota Supreme Court in support of an appellate court’s decision in a case involving USA Powerlifting.
McNabb says the court got it right ruling for USA Powerlifting. In the case, a powerlifter who went through male puberty attempted to compete in the women’s division, was denied, filed discrimination litigation and won at the District Court level.
“We want to highlight two things,” James Dickey, an attorney at the Upper Midwest Law Center, told The Center Square in a telephone interview. “The Minnesota Court of Appeals got it right, when it held, USA Powerlifting was not seeking to discriminate against anybody. It was doing what it could to protect the commonsense distinctions of the sexes.”
The governing body, headquartered in Anchorage, Alaska, has competitions designated for men and women.
“Without differences and distinctions, in men’s sports and women’s sports, in women’s sports there could be cause for real harm,” Dickey said. “Payton’s situation is that. She had to compete against a male in high school volleyball.”
JayCee Cooper, in 2019, was not allowed to compete in the Minnesota Women’s State Championship. In 2021, the advocacy group Gender Justice represented Cooper and won a 2023 decision in a Ramsey County District Court for violation of the Minnesota Human Rights Act.
This year on March 18, the Minnesota Court of Appeals sent the case back to District Court, saying it should be decided at trial if the decision was based on gender identity. Last month, the state Supreme Court said it would take up the case.
USA Powerlifting has maintained it is Cooper’s physiology, not gender identity, saying in court she went through male puberty. Thus, Cooper had strength advantages eroding fair play in the women’s division.
Upper Midwest Law Center, which represents Independent Women’s Forum for which McNabb is an ambassador, said the nonprofit IWF is getting involved because it is “crucial to the integrity of women’s sports.” McNabb is regularly with the IWF, 12-time All-American swimmer Riley Gaines and others advocating for the original Title IX signed in 1972 that granted a level playing field — no discrimination — in education programs getting federal financial assistance.
Opportunities for women equal to men were opened. In fact, in McNabb’s native North Carolina, the state public school athletic association did not crown girls state champions until 1972, and it wasn’t until 1977 that the association matched the boys competition with girls champions by classification in girls basketball. For context, the association’s first state champion was in 1913.
On the first week of September 2022, in McNabb’s senior season after others were marred by COVID-19, she was injured from a spike during a volleyball match by a boy saying he was a girl. The video went viral.
McNabb was knocked out for about 30 seconds. When she came to, there was memory loss with the concussion. She has since endured partial paralysis, vision problems, cognitive issues and needed extra help in school.
The USA Powerlifting filing for the case is expected within about 60 days, and the respective friend of the court briefs would be filed within seven days of that filing. Dickey said the timeframe allows briefs to be filed that are not duplicative.
“It was a mutual connection. We found them,” Dickey said of his firm’s involvement. “We saw this issue coming up in the Minnesota courts, and we wanted to invite real and important perspectives that may not be there. We were really grateful to connect with them.”
