In early March 2020, the U.S. Court of Appeals for the Eighth Circuit reversed the lower court’s decision in D.M. v. Minnesota State High School League and ruled unanimously that a Minnesota State High School League (the “League”) rule limiting competitive dance to girls likely violates the Fourteenth Amendment right to equal protection of the law.
Two 16-year-old male students, through their parents, filed suit, alleging that the League violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and under Title IX of the Education Amendments of 1972. Specifically, they claimed that the League unlawfully discriminated against them on the basis of sex through its rule prohibiting boys from participating on high school competitive dance teams. The District Court denied the boys’ motion for a preliminary injunction, ruling that they were unlikely to prevail on the merits of their claims because a girls-only dance team was substantially related to the government (The League’s) objective of increasing girls’ athletic opportunities. The boys appealed the District Court’s ruling to the Eighth Circuit.
On appeal, the League defended its rule by arguing that girls’ overall athletic opportunities have been limited, while boys’ opportunities have not. The Eighth Circuit rejected this argument, concluding that over the past five years, the representation of girls in Minnesota athletics has been almost directly proportional to the number of girls enrolled at Minnesota schools. To the contrary, as of recent, boys, not girls, have actually been slightly underrepresented in high school athletics in Minnesota.
Accordingly, the Eighth Circuit held that the League “has not shown that the underlying problem it initially sought to remedy by creating all-girl teams—the overall underrepresentation of girls in high school athletics—continues to exist.” Thereby, the Eighth Circuit reversed the judgment of the District Court and remanded for the District Court to issue a preliminary injunction in favor of the boys. Since the high school dance season is over in Minnesota, the injunction will apply for next school year.
Disputes regarding the rights of students to participate and compete in sports designated for the opposite sex continue to make national headlines. While this case comes from the Eighth Circuit, which does not have jurisdiction over Illinois, school districts should examine their gender-based programs to ensure that they are not favoring one sex over another and that the basis for such classification is not arbitrary or discriminatory. Moreover, it is important to examine how other appellate courts are analyzing these issues, as decisions from other circuits may be persuasive to the Seventh Circuit.
Please contact any attorney in our Students/Special Education practice group with questions regarding participation in sports on the basis of sex.
