                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3077
                         ___________________________

D.M., a minor, by Bao Xiong, the mother, legal guardian, and next friend of D.M.;
Z.G., a minor, by Joel Greenwald, the father, legal guardian, and next friend of Z.G.

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

    Minnesota State High School League; Bonnie Spohn-Schmaltz, in her official
 capacity as President of the Board of Directors for the Minnesota State High School
      League; Erich Martens, in his official capacity as Executive Director of the
   Minnesota State High School League; Craig Perry, in his official capacity as an
Associate Director of the Minnesota State High School League; Bob Madison, in his
official capacity as an Associate Director of the Minnesota State High School League

                       lllllllllllllllllllllDefendants - Appellees

                              ------------------------------

Missouri State High School Activities Association; Arkansas Activities Association;
  Nebraska School Activities Association; North Dakota High School Activities
       Association; National Federation of State High School Associations

                   lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                        ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                 ____________
                            Submitted: December 12, 2018
                                Filed: March 6, 2019
                                   ____________

Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.
                            ____________

MELLOY, Circuit Judge.

       In 2018, two boys sued their state’s high school athletic league and several of its
officers for declaratory and injunctive relief under 42 U.S.C. § 1983. The boys alleged
that the league violated their rights under the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution and under Title IX of the Education Amendments
of 1972, 20 U.S.C. §§ 1681–88 (“Title IX”). Specifically, they claimed that the league
unlawfully discriminated against them on the basis of sex through its rule prohibiting
boys from participating on high school competitive dance teams. The district court
denied the boys’ motion for a preliminary injunction, and they appealed. Having
jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse and direct the district court to
enter a preliminary injunction.

                                         I.
      Appellants D.M. and Z.G. are sixteen-year-old boys who attend high school in
Maplewood and Minnetonka, Minnesota, respectively. Both are in the eleventh grade.
Both are passionate about dance and have participated in various dance classes and
programs. Both want to dance on their schools’ competitive dance teams but, for
reasons explained below, have been prohibited from doing so.

       Appellee Minnesota State High School League (the “League”) is a non-profit
corporation that is a voluntary association of high schools. The League exercises
authority delegated to it by the high schools to control high school extracurricular
activities and sports throughout the state. To obtain and maintain such control, the


                                           -2-
League passes bylaws and rules that set forth the standards member schools use to
regulate and supervise those activities and sports.

       The League’s Bylaw 412 limits participation on a school’s competitive dance
team to females. The League claims that the reason for this limitation is that girls’
“overall athletic opportunities have previously been limited,” whereas boys’ have not.
To support its claim, the League points to data compiled by Amicus National Federation
of High School Athletic Associations (“NFHS”). The League also relies on Minnesota
law, which allows for gender-based, athletic limitations in certain circumstances. See
Minn. Stat. § 121A.04, subdiv. 3 (“[I]n athletic programs operated by educational
institutions or public services and designed for participants 12 years old or older or in
the 7th grade or above, it is not an unfair discriminatory practice to restrict membership
on an athletic team to participants of one sex whose overall athletic opportunities have
previously been limited.”). Pursuant to Bylaw 412, neither D.M. nor Z.G. have been
allowed to participate on their schools’ competitive dance teams.

        D.M. and Z.G. sued the League in July 2018 for allegedly violating Title IX and
their rights to equal protection under the Fourteenth Amendment. Shortly thereafter, the
boys moved for a preliminary injunction of Bylaw 412 as it pertains to boys and
competitive dance teams. The district court denied the motion. Despite finding that the
boys suffered irreparable harm and that “the balance of harms may favor” them, the
district court concluded that the injunction was not warranted because the boys were not
likely to prevail on the merits. The district court also concluded that the public interest,
as reflected in Minnesota Statute section 121A.04, favored denying the injunction. The
court explained that “[t]he girls-only dance team rule is substantially related to an
important governmental objective”—namely, “increasing girls’ athletic opportunities.”
Moreover, the court said that Title IX permits the League to create girls-only athletic
teams such as dance teams. The boys timely filed a notice of appeal.




                                            -3-
                                            II.
       We review “the denial of a preliminary injunction for abuse of discretion.”
Gresham v. Swanson, 866 F.3d 853, 854 (8th Cir. 2017). A district court abuses its
discretion when it “rests its conclusion on clearly erroneous factual findings or
erroneous legal conclusions.” Jones v. Kelley, 854 F.3d 1009, 1013 (8th Cir. 2017) (per
curiam). “We will not disturb a district court’s discretionary decision if such decision
remains within the range of choice available to the district court, accounts for all
relevant factors, does not rely on any irrelevant factors, and does not constitute a clear
error of judgment.” Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs,
826 F.3d 1030, 1035 (8th Cir. 2016) (quoting PCTV Gold, Inc. v. SpeedNet, LLC, 508
F.3d 1137, 1142 (8th Cir. 2007)). We review a district court’s legal conclusions de
novo. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013).

       When determining whether to issue a preliminary injunction, the district court
considers: “(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on other parties
litigant; (3) the probability that [the] movant will succeed on the merits; and (4) the
public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981) (en banc). Generally, no one of these factors is determinative. Id. at 113.
However, “the absence of a likelihood of success on the merits strongly suggests that
preliminary injunctive relief should be denied.” Barrett, 705 F.3d at 320 (quoting CDI
Energy Servs., Inc. v. West River Pumps, Inc., 567 F.3d 398, 402 (8th Cir. 2009)).
Consequently, we will begin our review with an analysis of that factor.

                                             A.
       There are two standards a district court may apply when assessing a movant’s
probability of success on the merits. The first, which applies in most instances, directs
the district court to ask whether the party requesting a preliminary injunction has a “fair
chance of prevailing.” Planned Parenthood Minnesota, North Dakota, South Dakota v.
Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). This fair-chance standard does

                                           -4-
not require the party seeking relief to “show ‘a greater than fifty per cent likelihood that
he will prevail on the merits.’” Id. at 731 (citation omitted). The second, which we have
called a “more rigorous standard,” calls on the district court to determine, as a threshold
matter, whether the movant is “likely to prevail” on his or her claims. Id. at 733. The
likely-to-prevail standard applies when “a preliminary injunction is sought to enjoin the
implementation of a duly enacted state statute.” Id. at 732. The district court applied
the heightened, likely-to-prevail standard because “the challenged policy is supported
by a Minnesota statute.” The parties dispute whether that was error.

       As noted above, the test for determining which standard applies is whether the
“preliminary injunction is sought to enjoin the implementation of a duly enacted state
statute.” Id. We apply a heightened standard in such instances because the duly enacted
state statute constitutes “government action based on presumptively reasoned
democratic processes,” and such action is “entitled to a higher degree of deference and
should not be enjoined lightly.” Id. at 732 (quoting Able v. United States, 44 F.3d 128,
131 (2d Cir. 1995)). The likely-to-prevail test may also be appropriate when a movant
seeks to preliminarily enjoin other forms of government action such as “administrative
actions by federal, state or local government agencies.” Id. at 732 n.6. However, in
those cases, the suggested course of action is to first “evaluate whether ‘the full play of
the democratic process[]’ was involved” in the actions and “then determine which
standard would be more appropriate.” Richland/Wilkin, 826 F.3d at 1040 (quoting
Rounds, 530 F.3d at 732 n.6).

      Here, Bylaw 412 can, under Eighth Circuit precedent, rightly be considered
government action. See Brenden v. Indep. Sch. Dist. 742, 477 F.2d 1292, 1295 (8th Cir.
1973) (determining that the League “act[ed] under color of state law” for purposes of
42 U.S.C. § 1983 in promulgating rules governing high school athletics). However, the
bylaw was not based on the “presumptively reasoned democratic processes” that Rounds
contemplated. Rounds, 530 F.3d at 732. Indeed, the creation of the bylaw did not
involve “the full play of the democratic process.” Id. at 732 n.6; see also

                                            -5-
Richland/Wilkin, 826 F.3d at 1040. There was no lengthy public debate involving both
the legislative and executive branches before the formulation of the bylaw and its
subsequent enactment. Cf. Able, 44 F.3d at 131–32 (imposing a heightened likelihood-
of-success standard upon a motion to enjoin federal legislation and regulation because
“Congress and the President [had] engaged in lengthy public debate before formulating”
them).1 And the bylaws are created by League-member schools throughout the state, not
by democratically elected officials who must answer to their constituents or face the
possibility of not being reelected.

       To the extent the League argues that the heightened standard applies because it
is implementing a state statute, Minnesota Statute section 121A.04, we reject the
argument. Section 121A.04 does not direct the League to do anything; rather, the statute
permits the League to discriminate on the basis of sex in limited circumstances—when
athletic opportunities for a sex have previously been limited. The League must still
show the continuing lack of opportunity and how the challenged policy addresses that
inequity. Nothing in this action calls into question the validity of the underlying statute.

      Consequently, the heightened, likely-to-prevail standard does not apply to the
boys’ preliminary injunction motion. We ask, instead, whether the boys have a fair
chance of prevailing.

                                           B.
       We now turn to the merits of the boys’ claims, applying the appropriate standard.
The boys argue that the League violated their Fourteenth Amendment equal protection
rights when it banned them from participating on their high schools’ competitive dance
teams because they are male. The League contends that it is justified in precluding the

      1
        Able served as an important guide for us when we adopted our heightened,
likely-to-prevail test in Rounds. See Rounds, 530 F.3d at 731–33; see also id. at 732 n.6.
Able’s treatment of when government action represents “the full play of the democratic
processes” is, therefore, significant.

                                            -6-
boys from the dance teams because doing so constitutes means that are “substantially
related to the important governmental interest of redressing past discrimination and
providing equal opportunities for women.”

       On the issue of past discrimination, the parties have submitted a chart that shows,
for Minnesota in a given year, the relative percentages of boys and girls enrolled in
League-member schools statewide. It then shows the relative percentages of boys and
girls among those students participating in interscholastic sports. The underrepresented
sex column shows the difference between the percentage of students enrolled and the
percentage of students participating in interscholastic sports for whichever gender is
underrepresented that year. The chart is reproduced here as follows:


           League-Member School Enrollments and Athletes by Gender
               League          League
                                                 League      League          Under-
               Members         Members
   Year                                          Athletes    Athletes      represented
              Enrollment      Enrollment
                                                  Boys        Girls            Sex
                Boys            Girls
                133,964         127,364          119,034     104,706           Girls
 2013–14
                (51.3%)         (48.7%)          (53.2%)     (46.8%)         (-1.9%)
                134,879         128,128          118,899     108,084           Girls
 2014–15
                (51.3%)         (48.7%)          (52.4%)     (47.6%)         (-1.1%)
                136,257         129,394          121,024     110,023           Girls
 2015–16
                (51.3%)         (48.7%)          (52.4%)     (47.6%)         (-1.1%)
                137,603         130,263          122,269     117,020           Boys
 2016–17
                (51.4%)         (48.6%)          (51.1%)     (48.9%)         (-0.3%)
                135,676         128,787          120,307     109,958           Girls
 Average
                (51.3%)         (48.7%)          (52.2%)     (47.8%)         (-1.0%)


      The same data for 2017–18 shows boys were underrepresented by 0.35%.

                                           -7-
       The Fourteenth Amendment provides that “[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
In the context of gender-based discrimination, the U.S. Supreme Court has interpreted
that clause to mean that unless a government actor can meet the “demanding” burden
of showing an “exceedingly persuasive” justification for treating males differently from
females, the differential treatment is unconstitutional. United States v. Virginia, 518
U.S. 515, 533 (1996); see also Duckworth v. St. Louis Metro. Police Dep’t, 491 F.3d
401, 406 (8th Cir. 2007). To successfully justify a classification based on gender, the
actor “must show ‘at least that the [challenged] classification serves “important
governmental objectives and that the discriminatory means employed” are “substantially
related to the achievement of those objectives.”’” Virginia, 518 U.S. at 533 (alteration
in original) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

       The Court has explained that “gender-based classification[s] favoring one sex”
that are designed to remedy past discrimination can be justified “[i]n limited
circumstances.” Miss. Univ., 458 U.S. at 728. Such circumstances exist when the
classification “intentionally and directly assists members of the sex that is
disproportionately burdened.” Id. However, a government actor may “evoke a
compensatory purpose to justify an otherwise discriminatory classification only if
members of the gender benefited by the classification actually suffer a disadvantage
related to the classification.” Id. (emphasis added). In other words, for a government
actor to classify individuals based on gender for the purpose of remedying a prior lack
of opportunities, the individuals must continue to lack opportunities or the classification
is not constitutionally justified. See id. at 729 (declaring a public university’s women-
only policy to be unconstitutional because the university had “made no showing . . . that
women [were] currently . . . deprived of” opportunities to obtain nursing training or
positions of leadership); id. at 730 (“[A]lthough the State recited a ‘benign,
compensatory purpose,’ it failed to establish that the alleged objective is the actual
purpose underlying the discriminatory classification.”).



                                           -8-
       The parties agree that girls historically have been underrepresented in Minnesota
high school athletics. However, over the past five years, the representation of girls in
Minnesota athletics has been almost directly proportional to the number of girls enrolled
at Minnesota schools. In fact, in both the 2016–17 and 2017–18 school years, the
parties’ means of determining representation show that boys have been slightly
underrepresented in high school athletics. Thus, the League has not shown that the
underlying problem it initially sought to remedy by creating all-girl teams—the overall
underrepresentation of girls in high school athletics—continues to exist, at least in
Minnesota.2 Without this underlying problem to remedy, the League cannot prohibit
boys from participating on girls’ teams unless it has some other “exceedingly
persuasive” justification for doing so. Virginia, 518 U.S. at 533.

       The League does not offer any such justification. Instead, it merely argues, in
broad terms, that restricting the membership of athletic teams to one sex “advances the
important government interest of promoting safety, increasing competition, redressing
past discrimination, and providing more athletic opportunities for female athletes.” The
League also cites a Rhode Island Supreme Court case, Kleczek v. R.I. Interscholastic

      2
        The U.S. Department of Education’s Office of Civil Rights, the League, and the
NFHS all repeatedly stress that girls are underrepresented in high school athletics
nationwide. To support their claims, they point to data that show “[o]ver the last four
years 1,218,125 (15.6%) more boys participated nationwide in interscholastic sports, on
average, than girls.” The problem with the data they cite, however, is that the data do
not show the total, nationwide number of students enrolled in schools that offer
interscholastic athletic programs. Nor do the data break down how many of those
students are boys and how many are girls. Without that information, it is impossible to
appreciate the extent to which either gender is over- or underrepresented in
interscholastic athletics at the national level. There may be more boys than girls
participating in interscholastic sports because there are simply more boys than girls
enrolled. Moreover, the alleged fact that girls are underrepresented in sports nationwide
does not address the question of whether girls are underrepresented in Minnesota so as
to justify a bylaw that prohibits boys from joining high school competitive dance teams
in that state.

                                          -9-
League, Inc., 612 A.2d 734 (R.I. 1992) (per curiam), in which the court held that
promoting safety and preserving interscholastic athletic competition for boys and girls
are important government interests. Id. at 739. Kleczek, however, in addition to being
non-binding, is distinguishable from this case. Kleczek involved a ban on boys
participating on girls-only field hockey teams. Id. at 735. The court, understandably,
had concerns about participants’ safety if boys were allowed on the teams. Id. at 739.
Here, the League does not explain how allowing boys to dance on their schools’
competitive dance3 teams would be unsafe or how it would deprive girls of opportunities
to compete. Moreover, Kleczek was decided under the Rhode Island constitution, not
the U.S. Constitution. Id. at 736. We find the League’s asserted other justifications for
prohibiting boys from participating on high school competitive dance teams
unpersuasive.

       Because the League has not asserted an “exceedingly persuasive” justification for
keeping boys from participating on high school competitive dance teams, we hold that
the boys had more than a fair chance of prevailing on the merits of their case.4 The
district court erred in concluding otherwise.

                                           C.
       Because we conclude that the boys have a fair chance of prevailing on the merits
of their equal protection claim, we need not address their probability of success on their
Title IX claim. See Richland/Wilkin, 826 F.3d at 1040 (“The plaintiff ‘need only




      3
      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.
      4
       Given the lack of justification for the policy, we have no doubt that the boys
could even satisfy the heightened, likely-to-prevail standard if it were applicable.

                                          -10-
establish a likelihood of succeeding on the merits of any one of [its] claims.’” (alteration
in original) (citation omitted)). We turn now to the other Dataphase factors.

       The district court concluded that the boys “sufficiently demonstrated irreparable
harm.” We agree. Students who are denied the opportunity to join their schools’ sports
teams because of their sex may suffer irreparable harm. See Bednar v. Neb. Sch.
Activities Ass’n, 531 F.2d 922, 923 (8th Cir. 1976) (per curiam). That is especially true
here. Both boys are juniors in high school. They love to dance and want to do so
competitively as part of a school team. The League’s ban has prohibited them from
doing so this year. They cannot get that season back. Without injunctive relief or final
resolution of their suit, they will be prevented from competing next year as well. These
sorts of injuries, i.e., deprivations of temporally isolated opportunities, are exactly what
preliminary injunctions are intended to relieve.

       Furthermore, we hold that the district court erred in concluding that the public
interest favored denying the injunction. The district court reasoned that “[t]he public
interest is evidenced in the Minnesota statute allowing girls-only teams that do not
violate Title IX or the Equal Protection Clause.” That statement, while true enough,
overlooks the fair probability that the League’s bylaw violates the Constitution. “[T]he
public is served by the preservation of constitutional rights.” Phelps-Roper v. Nixon,
545 F.3d 685, 694 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City
of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc); see also Awad v. Ziriax,
670 F.3d 1111, 1132 (10th Cir. 2012) (“[I]t is always in the public interest to prevent
the violation of a party’s constitutional rights.” (quoting G & V Lounge, Inc. v. Mich.
Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994))). As such, the public
interest Dataphase factor favors the boys.

      Finally, we hold that the balance of harms tips in favor of granting an injunction.
The district court alluded that such may be the case in its memorandum and order, and
for good reason. If the injunction is granted, the boys may try out for their schools’

                                           -11-
competitive dance teams. The negative public consequences of such an allowance, if
any, will be slight.5 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)
(“In exercising their sound discretion, courts of equity should pay particular regard for
the public consequences in employing the extraordinary remedy of injunction.” (quoting
Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982))). On the other hand, if the
injunction is denied, the boys will continue to suffer irreparable harm—namely, they
will be prevented from trying out for and participating on their schools’ competitive
dance teams in probable violation of their constitutional rights. The balance of harms
is decidedly in the boys’ favor.

                                            III.
       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.
                          ______________________________




      5
         The League argues that “[g]ranting an injunction would fundamentally alter the
requirements for MSHSL-sponsored activities and would disregard the unambiguous
language of Minn. Stat. § 121A.04.” The League worries that were the preliminary
injunction to be granted and the boys “subsequently determined ineligible after a trial
on the merits,” their teams would be required to forfeit “all contests in which [the boys]
participated.” We do not share the League’s concerns. If the injunction is granted, the
boys are “eligible” for all intents and purposes. Therefore, we are not convinced that
their teams would have to forfeit contests under the League’s rules. Moreover, the
League’s inability to show an “exceedingly persuasive” justification for its
discriminatory rule at this stage of the litigation makes a scenario wherein the boys lose
at trial highly unlikely.

                                          -12-
