Minnesota Public High School Can't Have Girls-Only Dance Team

So the Eighth Circuit holds.

|The Volokh Conspiracy |

The opinion is today's D.M. v. Minnesota State High School League, which applies the federal Equal Protection Clause. But there's an important limitation:

In many sports, single-sex teams can be justified if boys enjoy a competitive advantage over girls due to their weight and height. The League has not presented any evidence (and does not seem to seriously argue) that boys enjoy any competitive advantage over girls in dance.

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87 responses to “Minnesota Public High School Can't Have Girls-Only Dance Team

  1. “The League has not presented any evidence (and does not seem to seriously argue) that boys enjoy any competitive advantage over girls in dance.”

    I would think a court could take judicial notice of that fact (unless, of course, the dance required an overbite).

    1. Well, if you try to treat it objectively, it’s like ice skating – men do more impressive stunts, faster and more often.

      But other than that…

      1. Are there some dance competitions where all male, all female and mixed teams can all enter, and how do they turn out?

  2. It’s not just height and weight either.

  3. I was told in an earlier thread that when judges mandate legal equivalence between the sexes, it means they’re recognizing that “women are people.”

    I guess losing your dance team is a small price to pay for peoplehood.

    1. I certainly wouldn’t say that all differences in treatment between men and women — or even most — suggest that women aren’t people.

      But at the same time, I can’t quite see how this involves the girls “losing [their] dance team.” They can still be on their dance team; they just need to compete with the boys (likely not very many) who also want to participate.

      Now one could say that this fundamentally changes the nature of the dance, so they’ve “lost” their all-girls dance team, even if they haven’t lost their dance team as such. But I take it that the court’s point is that, under the Equal Protection Clause, the government generally can’t operate single-sex institutions unless there’s some significant reason for it (such as substantial physical differences between boys and girls that render girls unable to effectively compete with boys), beyond just aesthetics or tradition.

      1. Except aesthetics are fundamental to dance as an artform.

        They can certainly do dance routines that take advantage of the sexual dimorphism between men and women, or boys and girls, but the dance routines fundamentally change when you change the sex mix.

        1. Rigelsen: “Except aesthetics are fundamental to dance as an artform.”

          And the aesthetics are substantially a function of tradition and history.

          The problem here — for the girls — is that the application of absolutist approaches to non-discrimination can’t allow /any/ ordinary differentiation by sex. Therefore tradition and aesthetics be damned.

          The question the court asks is “Are the boys harmed?”, and it answers in the affirmative. It has no real answer to the question “How much?” It won’t make an exception for circumstances of middling or piddling “harm.” And it won’t consider the harm to the girls’ aesthetic tradition.

          Not saying it’s completely a terrible decision, and I imagine the schools and the dance teams will make accommodations and go on their merry ways. But the general thrust allows court intrusion and bullying for even slight “offenses.

          1. “And the aesthetics are substantially a function of tradition and history.”

            And body-type.

          2. Cakes are people too.
            If aesthetics matter here, they matter there.

            Welcome to the revolution,
            Those women who stood by and let a bunch of penis envying psychopaths steal their cause are reaping the whirlwind they let get sowed.
            There can be no distinctions made based on sex whatsoever, including perceived sex / gender preference / whatever today’s phrase is.
            Pull up the women’s markers at the golf tees, disband ‘men’s and women’s’ basketball, skating, field hockey, whatever – any member of the human race can compete in any event. That’s the new reality.

            You asked for, you got it.

      2. “render girls unable to effectively compete with boys” assuming you meant “against”, I doubt there’s a significant gender difference in public schools at this age, especially if they choose on merit. If it isn’t based on merit then I think it would tend to harm the team with boys, solely because everything is more difficult and choreographing mixed-gender groups in high school can be rough.

        A better solution in my mind would be to just start a boys league.

        1. I would also be suspicious of the boys’ motives for joining the team if I were a girl, having been a high school boy myself and seeing other boys try to get similar “exclusive access.”

          1. Not likely. Most of the guys wanting to join the dance team wouldn’t be into girls. Not that there’s anything wrong with that.

            1. Stereotypes aside, in much of dance (esp. ballet), the problem is to get more males to participate, not to exclude them.

              1. Accurate observations of fact are not stereotypes. The suggestion above is so well supported that it’s just …. true.

            2. I knew boys who pretended to be gay or bisexual in order to get exclusive access. That’s why I would be suspicious.

              1. It’s all about the showers, baby, all about the showers.
                And that ship has sailed into jurisprudence, so get over it.

          2. I would also be suspicious of the girls’ motives for joining the team if I were a boy, having been a high school girl myself and seeing other girls try to get similar “exclusive access.”

            See, now your statement is sexist, and all is did was substitute girl for boy and boy for girl!

            1. And your point is? Not exactly getting it. Please write more slowly and use simpler words.

            2. I have no idea what your point is. It just looks like you’re ignoring obvious differences between teenage men and women and their sexuality.

              1. Yeah; in the past, girls had it, boys wanted it, and it was that simple.
                Now, without boys and girls as distinct sexes, “what difference, at this point, does it make?”.

      3. OK, they get a brand-new dance team organized on a nonsexist basis.

        It’s interesting how the country had these debates at the time of the Equal Rights Amendment and the ERA lost (though there were some state-level versions).

        Yet the courts act as if this was an oversight by the sovereign people and if they’d understood their *true* interests, they’d have ratified.

        “under the Equal Protection Clause, the government generally can’t operate single-sex institutions unless there’s some significant reason for it”

        Reminds me of Scalia’s dissent in the VMI case

        “So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law trained elite) into our Basic Law.”

        1. ^ Bingo! Upvote.

        2. 35 states ratified the ERA, hardy a resounding refutation.

          And I wonder if you have listened to Radiolab’s excellent podcast series on SCOTUS, “More Perfect.” They had an episode on this very topic, centered on Craig v Boren and pre-Supreme Court RBG.

          1. *hardly

          2. “35 states ratified the ERA, hardy a resounding refutation.”

            All I said was that “the ERA lost,” not that it lost resoundingly.

            It needed to be ratified by 3/4 of the states to become part of the Constitution. That meant it needed 38 states. The vote was very close, comparable to a close vote in Congress. But it still lost, just as a bill in Congress that lost by only three votes…still didn’t pass.

            1. Does the expiration of the deadline matter?
              How about the states that rescinded?
              And, like the popular vote, close don’t count.

              1. Also, suppose that the ERA narrowly *won* instead of narrowly losing as it did.

                Would courts water down the ERA because it had been so controversial and because it was “nearly defeated”? Certainly not – that would have been wrong!

                You can’t treat an amendment which was passed as if it hadn’t been passed.

                And it’s wrong to treat an amendment which *wasn’t* passed as if it had been passed.

                1. I wasn’t making any of those arguments. Your post made it sound like the idea of equal gender rights lost in the marketplace of public opinion, which clearly wasn’t the case. As Jack Balkin points out, popular cultural and political movements have an effect on constitutional jurisprudence. He points to the gun rights movement as another example.

                  1. “Your post made it sound like the idea of equal gender rights lost in the marketplace of public opinion, which clearly wasn’t the case.”

                    Well, I *did* mention the state-level ERAs.

                    I was speaking to the legitimacy of courts acting as if an amendment has been ratified, when it hasn’t.

                    “As Jack Balkin points out, popular cultural and political movements have an effect on constitutional jurisprudence.”

                    Sociologically true, but I was discussing the issue of legitimacy.

          3. “They had an episode on this very topic, centered on Craig v Boren and pre-Supreme Court RBG.”

            Is it this video, which shows Ruth Bader Ginsberg as a costumed superhero?

            https://www.wnycstudios.org/story/sex-appeal

            1. TLDW version: Men oppressed women for 100s of years until RBG showed them that sex discrimination threatened their beer.

              1. Ha ha yep, that’s the one. Worth a listen.

                1. OK, but I don’t think it 100% addresses my concerns.

                  1. Though it’s nice to know that in the swinging 70s lawyers could appear before the Supreme Court attired in capes and tights.

                    1. Better times!

  4. Women’s chess.
    That it exists as a separate professional competition from open league chess should give women pause.
    What if a male wished to participate in the women’s competition. What argument would the women’s league offer that would not be ultimately cringe worthy.

    1. I recall hearing that the men’s professional billiard players wanted to integrate but the women’s association fought to keep men out. It turns out guys would rather watch women play pool than other dudes, so the women actually make more money.

      1. If this weren’t a respectable legal blog, I would make some kind of joke about “balls.” But this is a family site.

        1. Don’t forget the cue “sticks”!

    2. Women’s Chess does exist see this npr story.
      A Gender Divide In The Ultimate Sport Of The Mind
      I’d put in a link but couldn’t figure out how.

    3. Gasman — the argument, of course, would be that women have a serious disadvantage — much like the PGA vs. LPGA or the NBA vs WNBA. There is, for example, only one woman in the top 100 ranked world chess players.

      Unlike, say, gymnastics, where the female and male sports are dramatically different from one another and both are popular.

      No I’m not making a case for genes, though I’m not excluding them (which a lot of people apparently want to do).

      Now I’ll subtly move into Martina Navratilova’s argument that MTF trans athletes shouldn’t be allowed to compete in woman’s sports …..

  5. Wait a second….I thought the appellate courts were overworked but they have time to consider this? Did they run out of Trump administration policies to overturn?

  6. The two 11th grade boys are “passionate about dance”…?
    20 to 1 they are also fans of Alexandra Ocasio Cortez.

    (Hey, Arthur: weren’t you “passionate about dance” when you were 16, too…?)

    1. Vin Diesel was passionate about dance when he was that age. He had a breakdancing video.

      And there’s Jason Statham, who was a go-go dancer

      1. I’ll have to take your word on that Statham info. Was that in Lock Stock and Two Smoking Barrels or Snatch?

        1. Jason Statham, go-go dancer

          It was before he hit the big times as an actor.

          1. Do you have that link saved, ready to pop out whenever needed?

            1. Nope, I didn’t even know who Jason Statham was. Google.

              1. We believe you.

      2. Cool story, bro.
        I watched the video.
        Somehow, I doubt these 11th grade plaintiffs are angling to be Chippendale dancers.
        My 20 to 1 offer still stands.

        1. Smooth: “My 20 to 1 offer still stands.”

          Really? They’re 11th graders. I doubt they follow politics much, though like the unfortunate youngster Nick Sandman, of MAGA-hat fame (or infame–whatever), their parents might.

          1. 11th graders have been following politics for 11 years, maybe 12 or 13 if they were in federal pre-k or kindergarten. They get a daily dose of left wing propaganda each day in place of bible readings and the pledge of allegiance.

            1. left wing propaganda each day in place of bible readings and the pledge of allegiance

              You don’t sound very into freedom if you want to replace whatever you don’t like with forced speech and religion.

  7. Never a dull moment in Lake Wobegon.

    1. But the boys are above average!

      1. All the boys are above average.

        1. But the girls, and boys identifying as girls, and the passerby on the street, are MORE above average!

  8. In many sports, single-sex teams can be justified if boys enjoy a competitive advantage over girls due to their weight and height.

    I find that justification suspect as there are plenty of males who are shorter or weaker than some of the biggest and strongest females.

    Why not just make all sports leagues gender neutral and, similar to boxing and a few other sports, create height and/or weight classes to maintain fair competition (in most sports these would be maximums so one could compete above their height and/or weight class if they wished and could make the team). Sure, the ratio of males to females would likely increase as one moved up the height/weight classes because, on the average, men are taller and stronger

    This would also get rid of all the issues with “self identification” vs. “chromosome” vs. “physical” gender.

    1. “Why not just make all sports leagues gender neutral and, similar to boxing and a few other sports, create height and/or weight classes to maintain fair competition”

      Am I correctly understanding that you think that, say, marathon performance will in general be equal between males and females of the same height and weight?

      1. Exactly equal would be an overstatement but it is true that (all else being equal) there will be considerably less difference between a male and a female of the same height and weight than there will be between a tall/heavy person and a short/light person of the same gender.

        It is very important to remember that while there are differences between men and women, the differences between the averages are much less than the normal distribution within each population. Think two mostly-overlapping bell curves.

        1. Rossami: “Think two mostly-overlapping bell curves.”

          FWIW — there isn’t all that much overlap. Men have nearly a half-foot mean height “advantage,” and the standard deviation is between 2.8 and 2.9 inches, so only around 5-6% of women will be above the average male height.

          Now women would dominate, numerically, in the lower-height divisions, but at equal heights women have only about 2/3’s the muscle mass of men, especially upper-body. So even there, with roughly even heights, men will tend to excel at sports that require physical strength. There are /other/ areas where women excel.

          My point: Wouldn’t it be easier — not to say, traditional — to allow men and women to have their own leagues and teams?

          1. Hear, hear.

          2. In addition to the problems that POBYH identifies, the proposal makes no sense in other ways. Notice that boxing (and wrestling — the only other one that springs to mind that has weight classes) is an individual sport. It works logistically there. But not in team sports. Even if there were enough people to field teams in multiple height/weight classes in football or baseball or the like, each team has a wide variety in height and weight on its roster, and that’s by design. Different positions, different skill sets.

          3. This has nothing to do with easier; this is raw political power at work.

            Welcome to the revolution.

        2. “Exactly equal would be an overstatement but it is true that (all else being equal) there will be considerably less difference between a male and a female of the same height and weight than there will be between a tall/heavy person and a short/light person of the same gender.”

          Rossami: I want to be sure here – you think that height and weight matter for the marathon?

          Distance running doesn’t have height/weight classes. If being tall/heavy mattered, wouldn’t the record holders be dominated by large men? That really doesn’t seem to be the case.

          Badlib’s argument seems to be that if distance running institutes unisex size classes, then the winners will be proportionally split by sex within those classes. That seems unlikely to me, because distance running performance isn’t well correlated to size.

    2. That’s probably where things will go. Unfortunately, it will also (imho) result in > 90% male champions at every weight/height class. There is still a substantial advantage in muscle mass / strength for a given height/weight.

      Put differently, it would be the end the co-equal status of women’s sports. Not the end of the world, of course, but ironic to do on a ‘diversity’ rationale.

  9. Like the reindeer rule, sanctimonious busybodiness combined with rediculous fine distinctions hardly increases the reputation of the federal courts, and is unlikely to increase the seriousness with which the Equal Protection Clause is taken.

    Apparently sex is absolutely the only thing Americans are able to prefer doing with people of their own gender. Why sex and nothing else, I’m not sure why anybody outside the judiciary can say. It just seems to be an arbitrary caprice.

  10. Am I missing something? The final section of the opinion states:

    “In sum, all of the Dataphase factors favor granting D.M.’s and Z.G.’s motion for a preliminary injunction. We therefore reverse the judgment of the district court and remand for the district court to issue a preliminary injunction in favor of the boys.”

    The linked opinion is the appellate court overturning the district court’s denial of injunctive relief pending resolution on the merits. The headline of this post implies a decision on the merits was reached regarding the question (and quoting a footnote), but the opinion is a grant of preliminary injunction pending a trial on the merits.

    ???

    1. One of the factors for granting a preliminary injunction is likelihood of success on the merits.

      1. Yes, that was the point of disagreement between the district and appellate court; the likelihood of success prong of injunctive relief. But, recognizing a likelihood of success on the merits does not mean that the high school, from the point after the opinion, cannot have a girls only dance team.

        If a law school student was asked to give the holding in this case, would they be correct in saying that the appellate court ruled that the high school could not have a girls only dance team?

        1. If a law school student was asked to give the holding in this case, would they be correct in saying that the appellate court ruled that the high school could not have a girls only dance team?

          Well, it can’t during the pendency of the litigation, anyway.

        2. What David said with one exception. The injunction means the boys can try out for the dance team, not that they’ll necessarily make it. That’s up to the coach or whatever it is dance teams have.

  11. “In many sports, single-sex teams can be justified if boys enjoy a competitive advantage over girls due to their weight and height.”

    Word. Salad. “You can’t compete because you might be better.”

    1. Can single race teams be justified since whites enjoy a competitive mental advantage over blacks and mestizos?

      1. What about black men in basketball? This is unjust.

          1. Racist.
            All social media accounts must be banned immediately!

        1. Basketball is obviously bigoted against short people.

          https://www.youtube.com/watch?v=v8UVBgUd9GE

          1. One change to basketball I can never get people to consider is having each team field 30 feet of players instead of 5 people.
            5 6-footers, or 2 7-footers and 3 5-footers, or any combination, but no more than 30 feet of players.
            Gives the old-fashioned concept of a shorter ‘point guard’ another shot.

            1. Or 6 5-footers.

    2. If you had read the opinion, you’d understand that the court said that right after distinguishing a case that had to do with girls’ field hockey. It was simply saying that its ruling doesn’t mean that every sport will now have to allow both boys and girls try out/compete.

  12. Most forms of performance dance such a ballet and Broadway have roles for men and women. Cheer leaders can be either male of female often both on the same team. The New Orleans Saints dancers the Saintsations have a male member who does the same routines as the female members just in a different outfit.

    1. I think it’s fair to say that high school dance teams aren’t at the same level as professional or college-level dancers. They also don’t have instructors of the same caliber.

  13. I sort of agree with the limitation. Boys do not enjoy an advantage over girls in dance. Different but not better.

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