Thursday, December 20, 2007

Prom Dress Discrimination Draws First Amendment, Title IX Claims

In a recently filed lawsuit against the Gary, Indiana school district, Kevin "K.K." Logan, a high school senior, alleges that his constitutional and statutory rights were violated when his principal refused to let him enter his senior prom because he was wearing a dress.

According to the complaint filed in the Northern District of Indiana by Logan's attorneys at Lambda Legal, Logan is transgender, outwardly manifesting a feminine gender that is consistent with his identity. (The complaint refers to Logan using male pronouns, which is why I do so here.) Fortunately, Logan's teachers and peers have been accepting and supportive of his gender expression. However, on the night of his senior prom, principal Diana Rouse physically barred him from entering the banquet center where the prom was being held. Logan had reviewed high school policies in advance to ensure that there was no policy prohibiting him from wearing a dress. He had also received encouragement from the assistant principal to wear what he felt comfortable in.

Logan's complaint alleges that the principal's conduct violated his freedom of expression protected by the First Amendment. It also relies on the First Amendment to challenge the school board policy the principal was ostensibly enforcing, which prohibits students from wearing "clothing or accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements." Students clearly receive less protection for expressive speech and conduct than adults, as the Supreme Court's recent "Bong Hits 4 Jesus" case makes clear, however, schools cannot curtail students' expression arbitrarily; they may do so only to protect the rights and safety of other students or to prevent substantial disruption of educational activities. Given the support that Logan received from his teachers, peers, and administrators other than Rouse, the potential for disruption was arguably absent here.

Logan also asserts that the principal's conduct violates Title IX's prohibition on sex discrimination, which includes discrimination on the basis of sex stereotypes and gender expression. Recently, federal courts have tended to generously construe Title IX in favor of sex stereotyping claims, including most recently in the nearby Southern District of Indiana. Thus, I think Logan's Title IX claim is strong. In light of this, I wonder if the school district will defend the litigation -- which I can't imagine is very popular choice, given the community support for Logan -- or whether it will try to settle.