are both in court today out of the sixteen states with high school competitive dance teams minnesota is the last one the prohibits boys from participating unless this court reverses the lower court in mid to late october at the regular season goes through the end of january with the state tournaments beginning in early february so we would have to get a decision out sometime the next two to three weeks in your you you ask for an injunction we narrow the request in any way they need to be honest sure i don't recall we did submit a proposed order that i do not happen to have on means that was submitted along with the motion but in the now as well as below throughout the briefing an argument we have only positioned the preliminary injunction motion as providing relief for two boys you  supreme court makes clear that the league bears the evidentiary burden to justify its grows only dance rule under intermediate scrutiny indeed the court says that the league's justifications must be exceedingly persuasive and that this court must view those justifications with skepticism to ensure their genny one not hypothetical and not offered post hoc in response to this litigation and in looking directly at the reasons why  the legal lacks an important governmental interest in reading past discrimination in this case that's because there is no evidence in the record indeed the evidence directly contradicts that there is a statistical basis for remedying discrimination against girls in athletics in minnesota and that's good news that means that minnesota has accomplished something that many states have not which is achieving essential statistic equality of opportunity for boys and girls in athletics and minnesota and that should not concern this court that suddenly draws all girls only sports and minnesota into question and are vulnerable to constitutional challenge and that's because there are a number of other interests that could be used to uphold other sports for example interest in safety and maintaining fair competition in the cases started by the league that dealt with girls field hockey girls volleyball and girls tennis there is actual evidence  the record there that showed women to field hockey was based on safety concerns and limiting tennis and volley was volleyball were based on concerns for competition whereas that evidence is lacking in this case indeed in the volleyball and tennis cases it showed that due to the relevant physical differences that would come into play and competition between boys and girls girls would be excluded from competition to the benefit of boys and i was simply not the case with dance here and that is the league's burden to show which they have not i'm not exactly sure your honor i think the i don't think so i think the only relevance that the statute one twenty one eight point zero four house to this case  statute specifically there are two problems with the statute the first is that it does not compel the league to do anything it does not require the league to create single sex sports and secondly even if the legislature were to fully repeal that statute the league would maintain its authority so long as it complied with the equal protection clause and title nine to maintain single sex sports if it was able to comply with the constitution and federal law and of course as this case points out those questions are directly before the court today i want to make sure i understand the legal basis of your claim is i understand that this is exclusively equal protection i don't see and correct me if i'm wrong where you have a legal basis for a claim under title nine because title nine only requires participation in an opposite sex single sex sports when there's been a historic under representation and there's not been historic honor representation of boys so i don't see this is i don't see this as a title some are wrong yes or are we read title nine very differently generally title nine has the general rule that single sex ports are prohibited and last one of two exceptions is met either the sport must be a contact sport or selection to the sports teams must be based on competitive skill the next sentence that looks at historic under representation is only triggered in the instance that the sport concerned has already met one of the two earlier exceptions so that that's why in the briefing we point out that it was incorrect or to be honest there are no cases that touch on that we think that's just the most natural textual reading of the regulations so i don't i don't agree that i think the most natural textual reading of the statute is that if you have under represent if if one gender that we're talking more girls there's no evidence in a record the boards have been under represented so you can i read title nine to say you could have single sex or so if there is no historic under representation now you're providing statistics to show that we saw minnesota that no longer is the case and we're which is as you say very commendable but i just i guess i just don't see where title nine even comes into play and yes i can appreciate your honor's point the reason i disagree is because within its thirty four c a far section one zero six for one it's paragraph b that discusses the exceptions for separate teams the first since discusses the contact sports and competitive skill exception and then the following sentence says however way or one of these teams is sponsored i just don't read that as the only way a team could be separate is if one of the exceptions met and of course that is the basis for our focus on interpreter in the competitive skill exception but i like to return single girl to lose her spot on the team many schools in minnesota even have multiple levels of dance teams from varsity to junior varsity b teams and beyond so there are many opportunities for dance to go around if boys are allowed to participate and this is i think an argument that you i think all we can really say about that issue is that we don't know because we there are there's never been boys on the dance team good for all we know if if if boys are allowed to participate there may be hundreds or thousands of boys who want to go on the dance team and they will at the start to put limits or you say they haven't a team a b team far city junior varsity i suman those schools they limit the varsity and if you don't make the the you make the junior varsity so i don't know that you can just just because you only have to nod i don't know what we were all this tells us is we have two people who care enough a bob to file federal lawsuit there may be a lot i agree your honor and in two ways we actually do know that there is evidence that boys would not displace girls be on the two boys in this case that's because in the fifteen states that do allow boys to participate ninety nine percent of the participants are female and in this case that is and the league has never even suggested that it has a concern that boys would displace girls and dance and the case is started by the league previously mentioned that dealt with  girls field hockey volleyball and tennis the reason those sports were upheld the single sex is because there was abundant evidence in the record showing that girls would be displaced if boys were allowed to participate whether it was  contacts were concerns with field hockey or competitive concerns in volleyball or tennis that evidence was there and here the league is in the best position to know that the evidence exists and their failure to produce it or even  that it could exist i think is very telling to show that there is no evidence at all that boys would displace girls and dance and as a result even if this court which is where the hold that the league has an important interest in remedying discrimination banning boys does not further interest because banning boys would not remove the discrimination in girls because girls would have exactly the same opportunities to dance with boys participating as they would without only and in my search through the cases and other statues the only thing i have found that offers any kind of relevant interpretation is from the district of colorado hoover case which notes that the colorado the league's counterpart here views competitive skill as focusing on differences between males and females and as we noted in our reply brief that interpretation is in line with the interpretation we offer which also goes hand in hand with our displacement argument which is the focus under title nine in the competitive school exception must be looking for some inherent physical difference between the sexes that causes one to have a competitive advantage over the other if that is not the interpretation of competitive skill than the exception swallows the rule and makes the pontac sport exception entirely redundant because if the league's interpretation is adopted by this court which is essentially that morning your owners may please the court opposing counsel i'd like to begin by addressing the competitive advantage of the competitive skilled exception that was was touched on at the end of counsel's opening argument did they seek a competitive advantage reading of the statue which is not what the statute actually says the plain language of one hundred six or excuse me of thirty four c f r one sixty point four one excuse me the regulation i apologize for sure for sure i agree runner it says we're selection for such team is based upon competitive skill there can be separate single sex sports and to judge malloy's point title nine is traded with the under representation to remedy past discrimination against girls what can you name most can you tell me a sport that doesn't select participants based upon competitive skill least at the varsity level you may have club sports where in some schools everybody gets to play in america basketball but i mean at the varsity level can you name a sport it depends i guess how you define competitive you know teams may select players players cut even though they are more skilled in this particular sport because they don't fit the requirements for a team many many things that are that if it requires competitive skill to make the team then the exception is triggered so there's two layers if there requires competitive skill there's a substantial evidence in the record that competitive skill is required to make the dance team has effectively two levels of tr n it's an appendix to eleven to two twenty one and there's a specific section in there from a school junior high school is on and there's two fourteen macone high school dance team  tryouts prior to each competition to be sure that every dancer is fully prepared and ready to perform quote athletes may be cut if they cannot properly execute the dance moves and do not have high kicks as high as team members or do not have split there was no discussion of the likelihood of success standard that the court the underlying court found that we believed that the district court properly applied the more rigorous standard under rounds the rounds language are referred  repeatedly to implementation of the statute at seven thirty one talks about that whether to grant a preliminary injunction preventing the quote implementation of a statute seven thirty one thirty two later on about a party seeking a preliminary injunction of the implementation of the states that you must demonstrate more than a fair chance again  it matters in the sense that it's a higher of an entry higher burden for opponents to meet and two even if it doesn't apply to court the district court properly found that they didn't if i didn't phrase it in terms of fair chance i think he raise that they didn't raise a question almost never will this matter it's only it's only when the balance tips decidedly in the favor of the moving party you might want to public interest the district court properly found favored the minnesota state high school league and the like would have success whichever standard is applied was not met what is the i guess the bottom line for me is you have a facially discriminatory statute or regulations neistat you regulation that prohibits boys from being on the girls dance team does it not become your burden then to come up with some legitimate justification for that well and just to clarify a point of clarification there is a federal regulation and there is natural state statute that effectively has the same language that allows for single sex allows for as i think the years your partner has been very careful to point out is not requir essentially improving of opportunities for girls to participate given their historic on a representation of high school athletics do you have any justification beyond that statute for the for the regulation or policy there is legitimate the there is ample evidence as you noted in opening that boys have not been under represented that girls have been under represented past discrimination and remedying past discrimination is legitimate government interest narrowly tailoring at the higher level strict scrutiny standard restricting girls sports teams and programs to girls only addresses and is substantially related to that important governmental interest what do we make of the of the statistics that show that minnesota's to achieve parity for at least the last four years it's promising for sure and it shows that this policy works that having this policy in place since one thousand nine hundred six with respect to dance since the early eighties when the state statue was a past is getting there is it your argument  that's not enough to overcome decades of past discrimination against girls in sports and it should be noted at this time if if parents are successful in their title nine argument then that flips the scales and removes approximately five thousand female student athletes out of the title nine analysis and now we're at all yet they when they are they argument there's no sport correct i mean we're not that's not what we're talking about right now that it you know it's a difficult in mentally difficult question to answer from the national federation of high school and your legislature is correct well they didn't but title nine certainly did  consolidating the injunction motion with the merits is there any explanation of why no judge right so if if we were to order that to happen how fast you think this would be ready for trial in america i couldn't tell you you're on a relatively quickly the debt is already there but somebody is going to say well i have to hide i have to go out and and depose every every athletic department i will very high school problem and we have the district court bottom line view of these issues i think you could look at could if you have any evidence your opponent says there's you have no evidence that girls will be percent girls even when boys are wild eyed that's that's a pretty to me that's a pretty compelling piece of evidence it's difficult that i'm not aware that that evidence is actually in this record and so it's difficult for that for me to respond to that at oral  argument what i can say is that there are in fact roster limitations in there's inherent roster limitations that he just by rule and then there's the practical roster limitations in terms of you can put one hundred fifty girls or if successful girls and boys on the floor to dance at one particular time and so there's again this goes back to the competitive advantage there are still two levels of factors that that go into determining the team that takes the permitted to displace females even to the extent of one player then the goal of equal participation by females in interscholastic sports will be quote setback not advanced that's eighty six f second eleven ninety three so the potential for displacement is very real even if ninety nine percent under the clarke holding that's not enough or that's enough to affirm in that case a rule prohibiting boys from participating on girls volleyball have always taken the position that it was the bride injunction that was requested in the district court if you look in the record it's on appendix two ninety four that's how the district court framed it one when the district court denied the injunction they to the entire policy as it applies to girls dancing through right in that vein direct me if i'm wrong that that injunction just said these two boys make make participate in their schools  all the way to the end of the season with those two boys that doesn't strike me as a big a big irreparable injury to what the league is attempting to do with this program correct just the season if if i might just take a step back and i want to think a little bit again about the competitive skills and the potential for displacement and i'm going to show my ignorance i had daughters that were in ballet and danced but they never did any competitive dance and i understand that there are two separate categories of competition high kick which i presume does not involve any sort of athletic lifting vaults or anything where males would be at a significant competitive advantage but there's also the category is jazz and i just simply don't know are there in fact throws vaults those types of things in jazz and do you get in the situation where it becomes competitively advantageously for coaches to go out and to recruit significant numbers of males to improve their competitive footing in the competitions you know i don't necessarily know if there's volves but it but there is a certain there's a physical aspect ability to vault forty three inches higher in the air than someone else does you very little but i'm looking at jazz and i might say that if it's more like ballet listen if you go to a ballet and all you have are girls it is a less fulfilling experience than if you have a ballet that has men involved in it because there are just different things imagine the nutcracker all by women as opposed to by allowing men to participate it's a different performance in a different experience and i'm just wondering i just don't know what this jazz thing is and it may not matter at all but i see a possibility that that there may be an inherited vantage to having men involved in this process that if pursued with a firm intent to win which in all competitive things ends up happening that you might displace some some women i am and i just don't know if that's real or just a castle in the sky have managed to build i think it's a very real possibility judge if i could back up to judge logan one of the questions you  with respect to is it program or sport with that one twenty one eight point zero for the second circuit has held that the title nine and this is a mccormick compliant should not be measured by a sports pacific comparison but rather by examining program wide benefits of opportunities and the hypothetical here in your compliance should not be measured by a sports pacific comparison but rather by examining program wide benefits and opportunities and  what the hypothetical example that they use my time is running out as you can provide better equipment for a boys basketball team than the girls basketball team provided program wide you provide do you balance that and so for example they said you could provide better soccer equipment persisting it is certainly one of them your honor and one last point you know o c r is although it is a non binding decision it is directly on all fours on this very specific issue with the same defendant the minnesota state high school league the minnesota state high school he believes that just record to not abused its discretion in denying the injunction and we ask that you affirm and thank you participating and dance so with that understanding this case has been argued and briefed with the assumption that the preliminary relief would only apply to the two boys in this case because the third boy lives in wisconsin and his school no longer competes in minnesota to the concerns raised by judge erickson regarding the technique aspects there's the  criteria pointed out by the league for competitions is more appropriately understood as choreography in technique and this score and brendan which was mentioned by the league that's for seventy seven f second twelve ninety two notes that technique is hardly a function of sex and distinguishes the factors such as coordination concentration agility and tynan from factors that are more relevant in a context that would create a physical competitive advantage for one sex over the other and the back to the the you protection argument and that the interest is furthered by limiting boys any interest in  discrimination cannot be furthered when girls will not lose any opportunities if boys are allowed to participate the ninety nine percent factor shows that it doesn't  it could increase the ratio which could cause the statistics on under representation to skew back but that would only go to showing that the league would have an interest in remedying discrimination in the future if that were to happen it does not say anything to the necessary second factor of displacement v the cases that the league cites involving field hockey volleyball and tennis in all of those cases the sport women they're the interest in the a it articulated by the university was to redress employment discrimination against women but the court noted that women held ninety nine percent of nursing degrees and had  vast were vastly in majority in the nursing profession and as a result prohibiting men from in rolling and nursing wouldn't take any opportunities from women and as a result that justification was not valid and the court struck down that single sex limitation and finally the the lower court did not actually use the state statute as a basis for shit for saying that the league could create