Caleb R. Trotter: Utah must drop ban on boys in high school drill team

Search for ‘balance’ in school activities is no reason to make drill team a girls-only sport.

(Francisco Kjolseth | The Salt Lake Tribune) The Jazz dancers put on a show during a time out in Game 4 of an NBA basketball first-round playoff series, Saturday, April 23, 2022, in Salt Lake City.

The state championships for Utah high school drill team concluded in early February. If you watched the competitions, you probably noticed there were no boys participating. That’s by design, but it’s also unconstitutional.

Jayden Herman-Lopez graduated in 2021 from Granger High School in West Valley City. One of Jayden’s cherished experiences in high school was dancing on his school’s drill team, though Jayden’s experience was unlike that of his teammates. Jayden was only allowed to perform during school events, while his female teammates were also able to perform in drill competitions with other schools put on by the Utah High School Activities Association (UHSAA).

According to UHSAA rules, drill team is a girls-only sport. So, while some boys are members of school drill teams for school events, when it comes to competitions, they must remain on the sidelines and watch their female teammates perform without them.

Fortunately for Jayden, UHSAA’s discriminatory rule did not stymie his love of dance. His perseverance paid off, and now he’s a member of the Utah Jazz dance team. But what about the untold number of boys who choose not to pursue their interest in dance due to being excluded from school competitions? How many will lose out on opportunities like participating on the University of Utah’s Spirit Team, which is open to males and females for dance and cheerleading?

It is clear that there are no safety or fairness considerations sufficient to justify excluding males from UHSAA drill competitions. Instead, UHSAA bases its decision to prohibit boys from drill competitions to a misunderstanding of the federal Title IX law. That misunderstanding causes the constitutional rights of Utah boys to be violated.

Title IX prohibits schools receiving federal funding from discriminating on the basis of sex. Even though banning boys from drill teams would appear to directly contravene Title IX, the U.S. Department of Education advises universities to interpret the law as allowing schools to pursue proportional representation in their athletic programs. In other words, one way universities can show their athletics programs comply with Title IX is to show that the ratio of male and female athletes is close to that of male and female undergraduates. That’s what UHSAA means when it says it’s trying to “balance” opportunities for boys and girls.

Aside from the obvious problem that UHSAA is using guidance for universities and applying it to high schools, denying boys the opportunity to compete in drill team solely to achieve a statistical balance between boys and girls is blatantly unconstitutional.

The Fourteenth Amendment’s Equal Protection Clause prohibits the government from discriminating on the basis of sex unless there is an exceedingly persuasive justification that discrimination is necessary to address an important governmental objective. Here, achieving a statistical balance between the student body and athletics rosters is not a sufficient justification for discriminating against boys in drill team. It’s just an impermissible quota.

This is not the first instance of boys being prevented from competing in dance, but hopefully it’s the last. In South Dakota in 2018, a freshman boy challenged that state’s girls-only dance rule as violating his constitutional rights, and the South Dakota High School Activities Association responded by changing its rule to allow boys to participate. When confronted with a Title IX complaint and a subsequent constitutional lawsuit by two high school boys from the Twin Cities, the Minnesota State High School League chose to dig in and fought to keep its girls-only dance rule. That fight failed in 2019, with the federal Eighth Circuit Court of Appeals siding with the boys in holding that the rule was likely unconstitutional.

Should a Utah high school boy choose to challenge UHSAA’s discriminatory rule, it will likely meet the same fate as Minnesota’s and South Dakota’s. Rather than wait for a court order to do the right thing, UHSAA should do so now.

Caleb R. Trotter is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ individual liberty and constitutional rights. PLF represented the plaintiffs in the South Dakota and Minnesota lawsuits.