The Eighth Circuit on Wednesday affirmed a district court's denial of Female Athletes United's motion for a preliminary injunction blocking Minnesota's high school athletic association from permitting a transgender student to compete on a girls' varsity softball team, holding that Title IX does not provide a private right of action for the organization's disparate-impact claims.

Writing for a unanimous panel, Circuit Judge Raymond Gruender concluded that the claims brought by Female Athletes United, or FAU, "sound in disparate impact and do not allow for an inference of discriminatory intent or deliberate indifference." Circuit Judges Ralph Erickson and Steven Grasz joined the opinion.

FAU, a non-profit organization founded "for the purpose of defending women's sports," sued Minnesota Attorney General Keith Ellison, Minnesota State High School League Executive Director Erich Martens, two other state officials, and three school boards in May 2025. The suit challenged the League's enforcement of a 2016 bylaw that permits students to participate in athletics "consistent with their gender identity or expression."

The case concerns Jane Doe, a transgender high school senior who captains a varsity girls' softball team and led it to a state championship last season after "pitching every inning of its final five playoff games," the opinion said.

The panel held that under the Supreme Court's decision in Alexander v. Sandoval, Title IX "affords a private right of action only for claims of intentional sex discrimination." Intentional discrimination in the Title IX context occurs when a defendant treats persons less favorably "because" of sex, the court said, and "need only have intended to treat women differently."

FAU argued that its claims were intentional discrimination claims that the district court had misclassified. The panel disagreed, pointing to FAU's complaint, which conceded that the bylaw "does not take into account the student's biology or any physiological attributes" and that the League did not consider whether the bylaw "provided equal opportunity or effectively accommodated female athletes" before adopting it.

"What remain are paradigmatic disparate impact allegations," Gruender wrote, citing the complaint's references to the bylaw's "discriminatory impact," "detrimental effect," and "known negative impact" on female athletes. At oral argument, FAU told the panel "we don't contest that there is no disparate impact claim under Title IX."

The court also rejected FAU's alternative theory that Appellees were deliberately indifferent to federal guidance warning that permitting transgender athletes in female sports violates Title IX. A February 2025 executive order directed the Department of Education to prioritize Title IX enforcement against institutions requiring female students "to compete with or against . . . males," and the Office for Civil Rights opened an investigation into the League.

Gruender wrote that "executive guidance and agency findings, in and of themselves, do not reflect settled law" and "cannot independently establish a likelihood that certain policies or conduct violate federal rights." The panel cited Loper Bright Enterprises v. Raimondo for the proposition that "interpretation of the laws" is "emphatically the province and duty of the judicial department."

"There can be no dispute that whether Title IX requires, permits, or prohibits the participation of transgender athletes in female athletics remains an open question of law," the opinion said.

The panel noted that under the previous administration's reading of Title IX, "the Appellees had good reason to believe that failing to allow Doe to play girls' softball would have constituted sex discrimination."

On standing, the court sided with FAU, concluding that one of its members, "Athlete 1," had standing because her team was scheduled to face Doe's team during the regular season. The State Appellees had disputed her standing.

The panel declined to address the district court's alternative ruling that FAU failed to meet the Dataphase factors for preliminary injunctive relief. The court also denied earlier motions to hold the case in abeyance pending the Supreme Court's decisions in West Virginia v. B.P.J. and Little v. Hecox, both argued January 13, 2026.

The Eighth Circuit heard oral argument on January 15, 2026.