Writing for a unanimous panel, Circuit Judge Raymond Gruender concluded that the advocacy group's allegations "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.
Female Athletes United, a nonprofit founded "for the purpose of defending women's sports," sued Minnesota Attorney General Keith Ellison and several other state officials and school boards in May 2025, challenging a 2016 Minnesota State High School League bylaw that permits student participation in athletics "consistent with their gender identity or expression." The group sought to bar "male athletes [from] compet[ing] with or against" its members in contact or competitive-skill sports.
The panel first rejected the state's challenge to FAU's standing, finding that one member, identified as Athlete 1, was likely to face a scheduled game against the transgender student, identified as Jane Doe. "A game between Athlete 1's and Doe's teams is likely to occur because the League has scheduled a game between them to take place this season," Gruender wrote.
On the merits, the court turned to whether Title IX's private right of action reaches disparate-impact claims. Citing the Supreme Court's decisions in Cannon v. University of Chicago and Alexander v. Sandoval, the panel held that "Title IX affords a private right of action only for claims of intentional sex discrimination." FAU, the court noted, conceded at oral argument that "we don't contest that there is no disparate impact claim under Title IX."
The opinion found that FAU's complaint "concedes the Bylaw's facial neutrality" and contains "paradigmatic disparate impact allegations," including references to "a discriminatory impact," "a detrimental effect," "a known negative impact," and "a tangible impact" on female athletes.
The panel also rejected FAU's argument that Minnesota officials acted with deliberate indifference by disregarding federal guidance. 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."
"Whether Title IX requires, permits, or prohibits the participation of transgender athletes in female athletics remains an open question of law," the opinion stated.
The decision came against a backdrop of conflicting federal and state positions. Ellison issued a February 2025 legal opinion concluding that President Donald Trump's Executive Order 14201 "does not have the force of law and therefore does not preempt any aspect of Minnesota law." Then-U.S. Attorney General Pamela Bondi responded with a letter stating that "[r]equiring girls to compete against boys in sports and athletic events violates Title IX." The Departments of Education and Health and Human Services later issued a Letter of Findings declaring the League and Minnesota's Department of Education "not compliant with Title IX and its implementing regulations."
The panel denied FAU's motion for an injunction pending appeal in November 2025 and rejected the appellees' request to hold the case in abeyance pending the Supreme Court's decisions in West Virginia v. B.P.J., No. 24-43, and Little v. Hecox, No. 24-38, both argued January 13, 2026.
Because it affirmed on the private-right-of-action ground, the panel "take[s] no position on the court's further evaluation of FAU's motion under the Dataphase factors."
U.S. District Judge Eric C. Tostrud denied the preliminary injunction below.