ST. PAUL, Minn. (CN) – The Eighth Circuit heard oral arguments Wednesday in two Minnesota boys’ challenge to the state high school arts and athletics association’s policy of barring boys from participating on competitive dance teams.
Dmitri Moua and Zachary Greenwald, both juniors, are unable to join their high school competitive dance teams because the Minnesota State High School League, or MNHSL, enforces a rule that prohibits boys from competing on girls’ dance teams, according to their attorney Caleb R. Trotter with the Pacific Legal Foundation.
“Out of 16 states with high school competitive dancing, Minnesota is the last one that prohibits boys from participating,” Trotter told the Eighth Circuit panel Wednesday.
Trotter said there are two issues with a state law that says it is not an unfair discriminatory practice to restrict membership on a sports team to participants of one sex that have been previously limited.
“The statute does not compel the league to act in any way and does not require the league to create single-sex sports,” Trotter said.
He said that even if the Legislature fully repealed the statute, the MNHSL would still exercise its authority under a Title IX exception that allows schools to retain single-sex sports for the underrepresented sex.
Trotter explained to the panel that the boys are not challenging the statute itself but rather the MSHSL’s decision to see dance teams as girls only.
U.S. Circuit Judge James B. Loken asked the defense counsel if the MNHSL had any justification in enforcing its rule governing single-sex sports.
Kevin M. Beck, an attorney representing the league, replied, “There’s evidence that boys have not been unrepresented and girls have been unrepresented.”
Beck argued that when dance teams were recognized by MSHSL as a competitive sport in 1996, girls’ participation levels were below 50 percent.He added said that Title IX cases have recognized this lack of athletic opportunity for girls in the past.
Both of the teenage plaintiffs, Greenwald and Moua, were present at Wednesday’s hearing.
Outside of the courtroom, Greenwald, who attends Hopkins High School in Minnetonka, said he was able to perform this fall with the non-competitive dance team, which participates at events such as football halftimes, and has developed a close connection with the girls on the team.
He also is currently a manager for the competitive team.Some of his duties include helping with practices, setting up for the competitions and helping the girls with their costumes and hair.
Greenwald said he thinks it’s unfair that he is being left out on an opportunity simply because of his gender.
“If I were a girl, I would have been on this team for six years,” he said, as the competitive team allows members to join as early as seventh grade.
It’s also upsetting for Greenwald’s teammates who have danced with him on the non-competitive team this fall, he said.
“I got to build this place on the team and come into this environment and now I’m not really involved in that environment anymore, so I think they liked having me on the team,” he said of not being allowed on the competitive dance team.
Trotter, standing near Greenwald, explained that when Title XI was enacted back in the 1970s, these rules started trickling down to the state level and families began to challenge boys-only sports.
In those cases, Trotter said the courts analyzed the safety concerns and physical differences between the genders, such as height for volleyball, where men would have an advantage because they are generally taller than women.
Trotter said no court has ever discussed the skill level issue in competitive dance, where it is not as relevant because teammates are competing through choreography rather than being in direct contact.
Greenwald is optimistic for a favorable outcome.
“It’s unfair now, but I know if I am able to dance with my team,it will mean so much more,” he said. “I know that I will value it every single day on the team and every competition with such high respect, and I’ll really take every moment like it is my last.”
The Eighth Circuit panel indicated that a ruling would be issued before the end of the competitive dance season, which goes until mid-February.
U.S. Circuit Judges Michael Melloy and Ralph Erickson joined Loken on the panel.