While the 16-year-old high school junior has wanted to compete alongside his friends on the dance team since the seventh grade, the Minnesota State High School League does not allow him to — because he’s not a girl.
“I was excluded for something I felt I couldn’t change,” Zachary said. “It was really upsetting.”
Zachary is one of two Minnesota high school boys who are suing the league over the rule, calling it unconstitutional and discriminatory.
Lawyers for Zachary and Dmitri Moua, who attends Roseville Area High School, filed a federal lawsuit in July accusing the Minnesota State High School League of violating the boys' rights under the equal protection clause of the Fourteenth Amendment to the Constitution and Title IX of the federal Education Amendments of 1972.
A federal judge rejected the request, but the boys’ legal team appealed the ruling to the U.S. Court of Appeals for the 8th Circuit and expect that court to issue a ruling within the next month, said Caleb R. Trotter, a lawyer representing the boys who is with the Pacific Legal Foundation, a California-based law firm that has worked on two similar cases.
The competitive dance team season ends mid-February, but a ruling in the boys' favor would allow them to try out for the squad next year.
Of 16 states that offer competitive dance as a high school sport, Minnesota is the only state that still prohibits boys from participating, Trotter said.
The state’s rules, Trotter argues, are “based on outmoded stereotypes and concepts for what boys and girls like to do.”
Kevin Beck, a lawyer representing the Minnesota State High School League, said the league does not comment on pending litigation. But he argued in a court brief last month that excluding males from dance teams is necessary to redress past discrimination against girls, who have been historically underrepresented in high school sports.
The league argues the lawsuit challenges a state statute that allows high school athletic teams to restrict membership “to participants of one sex whose overall athletic opportunities have previously been limited.”
Moreover, Title IX allows single-sex athletics “where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
Lawyers for the two boys argue that the dance team is not a contact sport and that team selection is based on artistic performance ability, not on “size, speed or strength.”
Dmitri, who has been dancing for about two years, agrees, saying he doesn’t feel that he has a leg up over any girl because he’s male. In fact, the girls do many moves that he cannot execute yet.
“I just think it’s solely based off your motivation and your ability to practice hard and push yourself and have that mentality of being better,” Dmitri said.
But the state high school league pushed back against the idea that team selection isn’t influenced by “size, speed or strength.”
“Simply because Dance Team is not a ‘contact sport’ does not mean that participation from boys will not upset the competitive balance,” Beck wrote in the court brief.
This is not the first time the Pacific Legal Foundation has asserted boys’ rights to compete on dance teams. After the firm filed a similar lawsuit on behalf of a South Dakota student last year, that state voted to recommend a permanent rule change allowing boys to participate.
But in 2017, a different case was less successful. A Wisconsin high school student filed a Title IX complaint with the U.S. Education Department, but the department denied that his rights had been violated.
Trotter pointed to the most recent data from the Education Department’s Office for Civil Rights showing that boys are actually slightly underrepresented in league athletics in Minnesota, by about a third of a percent.
“You can’t now say that we’re still discriminating against boys to redress past discrimination when they’ve already done it,” Trotter said. “When can they stop discriminating against boys? Will it be in five years? In 10 years?”
Though they filed the lawsuit in July, the two boys didn’t meet until earlier this winter when their teams competed against each other earlier in the winter season, and they were both attending as team managers.
Both boys are able to participate in their school’s fall-season extra dance teams, which perform at pep rallies and football games, but are barred from joining the winter-season competitive team, which is structured more like any other sport, with varsity and junior varsity teams and competitions against other high schools.
The competitive team is more fulfilling, Zachary said, and creates a tightknit community that he can’t find in his dance studio outside of school.
“Competing adds a whole new level of commitment,” he said, “that you’re doing this for your team to be the best that you can be.”
For Dmitri, dancing is both freeing and challenging. He feels exhilarated by “the constant drive to push harder to get that extra turn or extra inch on that kick or on that leap.”
He’s been practicing with his school’s dance team for the past two years but has never had a chance to showcase his abilities in the same competitions as his teammates.
“I feel like I put in all the effort and as much work as everyone else,” Dmitri said. “I just want to have my work and motivation shown, but I can’t.”