An Equal Protection challenge to a public charter school's gendered dress code recently survived summary judgment. But the court dismissed the plaintiff's Title IX claim. As we noted in an earlier post about this case, the plaintiffs are a group of parents suing Charter Day School on behalf of their female children to challenge the school's dress code policy that prohibits girls from wearing pants. The school's uniform policy is part of its mission as a "traditional values charter school." Boys can wear pants or shorts while girls are restricted to skirts.
The court granted the school's motion to dismiss the plaintiff's claim that the dress code violated Title IX after concluding that Title IX does not prohibit schools from imposing gender-specific dress codes. The court based its conclusion on the fact that the original Title IX implementing regulations (promulgated by Department of Education's predecessor agency, HEW) contained a provision prohibiting gendered dress codes, but amended the regulations in 1982 to remove this provision. The court interprets this absence of a prohibition as an express permission to maintain gendered dress codes and extended judicial deference to this interpretation of the regs. Interestingly, even though the court cited the agency's stated rationale for striking the prohibition on gendered dress codes from the regs -- to allow the agency to focus its enforcement efforts on other Title IX issues -- it failed to acknowledge that this rationale is in no way conflicted by judicial enforcement of Title IX to prohibit gendered dress codes. Title IX is a general prohibition on all sex discrimination that is not expressly excluded from the statute's scope. As such, I believe that the court should have entertained the argument that the dress code constituted unlawful sex discrimination in violation of Title IX.
Fortunately, though, the plaintiffs fared better on their second argument that the dress code violated the Equal Protection Clause, which applies to the policies of a public charter school. Without rejected the idea that a stricter version of intermediate scrutiny might apply, the court determined that the dress code did not even survive the more lenient "comparable burdens" test that is sometimes used for dress codes.The court noted that the requirement for boys to wear pants (and not skirts) is consistent with community norms, but the requirement for girls to wear skirts (and not pants) is inconsistent with community norms. ("Women (and girls) have, for at least several decades, routinely worn pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s. According to plaintiffs' expert, most public school dress codes across the country allowed girls to wear pants or shorts by the mid 1980s.") Though the school argued that the gendered dress code provides students with a "visual cue" that promotes respect between the sexes and thus serves an important purpose, the court did not see any evidence that the requirement actually promoted this goal. For one thing, the dress code requirement is lifted on certain days, for special events or because of phys ed, and it does not appear that boys and girls treat each other with less respect on those days.
The school board is reportedly in the process of "discussing its options" for how to proceed in the face of the court's ruling. Realistically, this means choosing between appealing the court's ruling to the federal appellate court, or agreeing to change the policy in exchange for the plaintiffs dropping the case.
Showing posts with label dress. Show all posts
Showing posts with label dress. Show all posts
Tuesday, April 02, 2019
Tuesday, April 04, 2017
Title IX Dress Code Case Survives Motion to Dismiss
We often read about school dress code controversies, like students objecting to traditions that sort students by sex into different color graduation robes, or imposing a gender dress code on prom attire or yearbook photos. I've always thought that issues like these were ripe for Title IX challenge, since this is clearly treating students differently on the basis of sex in the absence of a statutory or regulatory exception. Litigation challenging these gendered dress codes, however, is rare. I think the reason is that is that high profile cases of public school dress codes are limited to special occasions (prom, senior pictures, cap and gown) that target students who are on the verge of graduation, and therefore no longer having standing or motivation to challenge the policy. Private schools are more likely to have gendered dress codes that govern students' day to day attire, but these schools are less likely to be subject to Title IX because many if not most private secondary schools don't receive federal education funding.
Recently, however, three students, via their parents, sued a charter school in North Carolina, challenging its policy that requires girls to wear skirts, jumpers and prohibits them from wearing shorts or pants. They argue that the policy "subjects them to archaic sex stereotypes about what constitutes appropriate behavior and conduct for girls, reinforcing the notion that girls, but not boys, must dress and behave modestly, that they are less physically active than boys and that they should behave and dress in a manner that is otherwise traditionally considered appropriately feminine."
The plaintiffs claim that because the charter school is a statutory defined public school, its gender-based dress code violates the U.S. Constitution. The school moved to dismiss this claim, arguing that the students knew about the dress code when they voluntarily enrolled at the charter school. However, the court pointed out, there is no doctrine of waiver when it comes to constitutional rights. The plaintiffs will thus be able to continue to press their argument that the dress code is rooted in generalizations and stereotypes and thus impermissible under the standard of heightened scrutiny articulated in U.S. v. Virginia.
Additionally, the plaintiffs' Title IX claim survived the school's motion to dismiss. The plaintiffs properly alleged in their complaint that the school receives federal funding, that the policy discriminates by sex, and that the plaintiffs are harmed by the policy. In support of its motion to dismiss, the school argued that in 1982, the Department of Education repealed a Title IX regulatory provision that prohibited gendered dress codes. The school argued that the repeal constitutes evidence of the Department of Education's position that gendered dress codes are, therefore, permissible. However, while courts generally defer to agencies regulations that fill in gaps and details of broadly-worded statutes, this court understandably hesitated to defer to the school's argued inference that repealing the prohibition constituted permission for gendered dress codes. Title IX, notably, is a blanket ban on sex discrimination except where statutory and regulatory exceptions permit. Given the statute's structure, I don't think that a court is obligated to infer that the agency's repeal of an earlier provision about dress code is tantamount to creating an exception.
The court also noted that the USDA, a federal agency which also distributes federal funds to educational institutions in the form of a school lunch subsidies, also has Title IX regulations, which do in fact prohibit “discriminat[ing] against any person in the application of any rules of appearance.” The court reasoned in its decision on the motion to dismiss that the case had not yet produced enough of a record for it to determine whether the USDA regulations were applicable and warranting judicial deference. The court appears willing to eventually decide how both the USDA and DoE regulations factor in to judicial interpretation of Title IX on the question of gendered dress codes, but it wasn't ready to do so early in the litigation. When the court eventually does so, however, the case could send a message to schools that this and other manners of gendered dress codes -- including the more commonly encountered policies governing prom, yearbook, and graduation ceremony -- are unlawful.
Decision: Peltier et al. v. Charter Day School, No. 7:16-CV-30-H, 2017 WL 1194460 (E.D.N.C. Mar. 30, 2017).
The court also noted that the USDA, a federal agency which also distributes federal funds to educational institutions in the form of a school lunch subsidies, also has Title IX regulations, which do in fact prohibit “discriminat[ing] against any person in the application of any rules of appearance.” The court reasoned in its decision on the motion to dismiss that the case had not yet produced enough of a record for it to determine whether the USDA regulations were applicable and warranting judicial deference. The court appears willing to eventually decide how both the USDA and DoE regulations factor in to judicial interpretation of Title IX on the question of gendered dress codes, but it wasn't ready to do so early in the litigation. When the court eventually does so, however, the case could send a message to schools that this and other manners of gendered dress codes -- including the more commonly encountered policies governing prom, yearbook, and graduation ceremony -- are unlawful.
Decision: Peltier et al. v. Charter Day School, No. 7:16-CV-30-H, 2017 WL 1194460 (E.D.N.C. Mar. 30, 2017).
Wednesday, April 08, 2015
Prom season discrimination
I know we do this every year, but this is another post about discrimination against gender non-conforming students. It always happens somewhere in the United States during prom/yearbook season.
The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo.
The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the student's mother "Girls wear dresses and boys wear tuxes, and that's the way it is," came under pressure from the National Center for Lesbian Rights.
So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of today's fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent.
On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.
The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo.
The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the student's mother "Girls wear dresses and boys wear tuxes, and that's the way it is," came under pressure from the National Center for Lesbian Rights.
So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of today's fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent.
On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.
Saturday, March 08, 2014
High School Coach's Haircut Policy Violates Title IX
The Court of Appeals for the Seventh Circuit recently ruled that a high school coach's policy of requiring the boys' basketball team to wear very short hair constituted sex discrimination in violation of the Constitution's Equal Protection Clause as well as Title IX. The plaintiffs, the Haydens, are parents of a high school junior in Greensburg, Indiana, who wants to but cannot join the basketball team due to the length of his hair. According to the coach, basketball players must wear their hair above the ears, in order to promote team unity and to "project a clean-cut image." The boys' track coach imposes a similar requirement, though other boys' teams do not. The parents sued, arguing that the hair cut policy impairs a liberty interest protected by the Constitution's due process clause, and that it constitutes sex discrimination because the school does not impose the same requirement on girls' teams.
A lower court ruled in favor of the school, but on appeal, the court determined that the policy constituted impermissible sex discrimination. In doing so, the court's analysis borrowed from Title VII cases that have considered dress code and appearance requirements in the context of employment. There, courts have upheld dress codes that treat employees differently on the basis of sex, but only when they impose equivalent burdens on both male and female employees. In one well-known case, for example, a court upheld a casino's requirement that female bartenders wear makeup, because it considered that requirement in the context of a larger, comprehensive dress code policy that imposed different burdens on male employees that the court saw as comparable.
In similar fashion, the Seventh Circuit reasoned that without evidence that the school imposed comparable burdens on any of the female teams -- a burden that was the school's to produce -- the coach's haircut policy discriminated on the basis of sex. Not because the school didn't impose the same requirement on female athletes, but because the record did not reflect evidence that the school imposed any requirements on them that would be comparably burdensome. As part of this analysis, it was relevant to the court that the coach's policy was not simply a ban on "extreme" hair styles of the "Age of Aquarius, Tiny Tim" variety but instead required players to keep their hair above the ears. Because of the policy's departure from mainstream style norms, the court saw the policy as burdensome on the male students affected by it.
A dissenting judge disagreed that the haircut policy constituted sex discrimination, emphasizing that different treatment is not necessarily discrimination. For example, he pointed out that a girls' softball team might wear shorts while a boys' baseball team wears pants. All student-athletes at this high school are bound by a general policy that prohibits players from wearing their hair in a way that could pose problems for "health and sanitation," mohawk styles, or any styles that include "insignias, numbers, initials, or extremes in differing lengths." In addition, the athletic department's policy delegates to each coach the authority to determine "the acceptable length of hair for a particular sport." In this context, the dissenting judge viewed the boys' basketball coach's policy as just one variation on a comparable set of burdens that applies to male and female athletes alike. In the end, though, this reasoning did not prevail. The lower court is under orders to apply a remedy consistent with the appellate court's opinion. Barring the unlikely intervention of the Supreme Court, the remedy that should issue is an injunction against the hair cut policy.
This isn't the first time Title IX has been used to challenge requirements related to a student's appearance -- prom attire cases come to mind as examples of that sort. But in terms of the statute's application to an athletic team's uniform hair style requirement, I believe this case is unique. It will be interesting to see if this case paves the way for similar challenges to come forward in the future.
A lower court ruled in favor of the school, but on appeal, the court determined that the policy constituted impermissible sex discrimination. In doing so, the court's analysis borrowed from Title VII cases that have considered dress code and appearance requirements in the context of employment. There, courts have upheld dress codes that treat employees differently on the basis of sex, but only when they impose equivalent burdens on both male and female employees. In one well-known case, for example, a court upheld a casino's requirement that female bartenders wear makeup, because it considered that requirement in the context of a larger, comprehensive dress code policy that imposed different burdens on male employees that the court saw as comparable.
In similar fashion, the Seventh Circuit reasoned that without evidence that the school imposed comparable burdens on any of the female teams -- a burden that was the school's to produce -- the coach's haircut policy discriminated on the basis of sex. Not because the school didn't impose the same requirement on female athletes, but because the record did not reflect evidence that the school imposed any requirements on them that would be comparably burdensome. As part of this analysis, it was relevant to the court that the coach's policy was not simply a ban on "extreme" hair styles of the "Age of Aquarius, Tiny Tim" variety but instead required players to keep their hair above the ears. Because of the policy's departure from mainstream style norms, the court saw the policy as burdensome on the male students affected by it.
A dissenting judge disagreed that the haircut policy constituted sex discrimination, emphasizing that different treatment is not necessarily discrimination. For example, he pointed out that a girls' softball team might wear shorts while a boys' baseball team wears pants. All student-athletes at this high school are bound by a general policy that prohibits players from wearing their hair in a way that could pose problems for "health and sanitation," mohawk styles, or any styles that include "insignias, numbers, initials, or extremes in differing lengths." In addition, the athletic department's policy delegates to each coach the authority to determine "the acceptable length of hair for a particular sport." In this context, the dissenting judge viewed the boys' basketball coach's policy as just one variation on a comparable set of burdens that applies to male and female athletes alike. In the end, though, this reasoning did not prevail. The lower court is under orders to apply a remedy consistent with the appellate court's opinion. Barring the unlikely intervention of the Supreme Court, the remedy that should issue is an injunction against the hair cut policy.
This isn't the first time Title IX has been used to challenge requirements related to a student's appearance -- prom attire cases come to mind as examples of that sort. But in terms of the statute's application to an athletic team's uniform hair style requirement, I believe this case is unique. It will be interesting to see if this case paves the way for similar challenges to come forward in the future.
Monday, March 28, 2011
It's prom season! Bring on the gender conformity
Prom season causes a certain amount of consternation for administrators worried about, largely, the alcohol consumption and sexual behaviors of prom goers. In recent years we have seen some school officials, though, battle another alleged social ill: girls who want to wear tuxes (and some boys who want to wear gowns). A little over a year ago Erin wrote a post with a very similar title as my own here. And this year is no exception. In Houma, Louisiana senior Monique Verdin is planning on wearing a tux to her prom. Last year she wore a men's suit to a dance--without incident. But school officials have caught wind of her plan--which isn't really a plan; she just wants to wear what she's comfortable in--and said she will not be allowed in if she wears a tuxedo. According to school policy, prom attire must be formal wear which specifically notes gowns for girls and tuxedos for boys (we should also note how this policy is not just gendered but has class implications as well). But other similar cases (and note Verdin has not filed a lawsuit; she seems to be just hoping for the best) have privileged legally protected civil rights over "tradition" (the response from a parish official). The prom is this weekend. And right now it seems school officials are adamant.* In good news, Verdin's family and friends are sticking by her. Her father has contacted a lawyer. And her friends have said they will not go into the prom until they are assured that Verdin can get in too. * Interestingly this story was published this morning and despite my repeated refreshings it seems not to have been updated. But the title of the story that appears on my internet banner in is conflict with the article title and reads: High school relents on prom tux for girl. Not sure if this is wishful thinking or if there is some internet glitch. I certainly hope it's true and that the school does not have something sneaky planned like an alternate prom.
Wednesday, March 25, 2009
Indiana HS OK's Girl's Tuxedo
An update on the prom story we blogged about last week: Indiana's Lebanon High School has lifted its requirement that girls wear formal dresses to the prom. The ACLU had challenged the policy in court on behalf of a lesbian client who intends to wear a tuxedo in consistency with her sexual orientation and preferred gender presentation.
Monday, March 16, 2009
It's Prom Season Again, Bring on the Lawsuits
Every year around this time it seems we get to post about a student's lawsuit challenging a school district's gender-based prom policies. This year's lawsuit targets Lebanon (Indiana) School District, which has refused to allow a lesbian student to wear a tuxedo to her high school prom. The student, represented by the ACLU, claims that the restriction violates her First Amendment right to freely express her sexual orientation, and is an illegal sex discrimination in violation of Title IX. A legal scholar quoted in the article points out that gender-based dress codes, such as those prohibiting boys from wearing earrings, have been upheld by courts, but that prom-specific dress codes have not received definitive treatment.
The fact that this policy appears to target the student because of her sexual orientation could help the ACLU distinguish it from the typical dress code case and may underscore her free expression claims in a way that a more general gender-based dress-code policy (such as one prohibiting all girls from wearing pants to school?) would not.
Moreover, as a student interviewed in the story pointed out, there is a certain irony in morals-based opposition to girls in tuxedos, which is more "conservative" attire than the often revealing and sexually-suggestive dresses that girls are allowed to wear. On the other hand, she aptly stated, "A tuxedo's not hurting anybody. Why should it matter?"
The fact that this policy appears to target the student because of her sexual orientation could help the ACLU distinguish it from the typical dress code case and may underscore her free expression claims in a way that a more general gender-based dress-code policy (such as one prohibiting all girls from wearing pants to school?) would not.
Moreover, as a student interviewed in the story pointed out, there is a certain irony in morals-based opposition to girls in tuxedos, which is more "conservative" attire than the often revealing and sexually-suggestive dresses that girls are allowed to wear. On the other hand, she aptly stated, "A tuxedo's not hurting anybody. Why should it matter?"
Saturday, November 25, 2006
Dress Codes for Medical Students
The New York Times ran an interesting opinion piece last week (forgive the lateness of this entry, but it was Thanksgiving!) about the need for more conservative or formal dress codes for medical students. The author, Dr. Erin Marcus, is an assistant professor at the University of Miami's medical school. She noted numerous examples of students dressing in a way that, in her view, undermined their ability to do their job and to be taken seriously by patients, colleagues, professors, board examiners, malpractice lawyers, the general population, etc. (you name the demographic, it was there).
Fair enough -- I can imagine that it's sometimes difficult to get patients (not to mention the other constituencies included in Marcus's article) to take medical students and relatively inexperienced residents seriously. The problem? Marcus's main issue seems to be with women students -- with the exception of one brief aside about a male doctor showing up unshaven one day, the remainder of the article zeroes in on women medical students, and their hair, shoes, cleavage, skirt length, and midriffs.
The problem with this categorization from a Title IX perspective is something that Marcus herself raises: "research has also found that physician clothing can influence scores on board certification oral exams, in which a senior doctor assesses a younger doctor’s medical knowledge." If the perception by senior doctors that younger doctors are less qualified because of the way they dress, and the main detriment is suffered by women medical students and doctors, there's a real problem with disparate treatment and gender stereotyping that needs to be addressed.
Marcus was clearly trying to be helpful to medical students in telling them that wearing more formal or conservative clothes might be beneficial to them in the long run in terms of getting jobs, making patients comfortable around them and passing exams. No doubt there's a lot of value to her observations. The problem is when the message is being sent pretty much only to women.
Fair enough -- I can imagine that it's sometimes difficult to get patients (not to mention the other constituencies included in Marcus's article) to take medical students and relatively inexperienced residents seriously. The problem? Marcus's main issue seems to be with women students -- with the exception of one brief aside about a male doctor showing up unshaven one day, the remainder of the article zeroes in on women medical students, and their hair, shoes, cleavage, skirt length, and midriffs.
The problem with this categorization from a Title IX perspective is something that Marcus herself raises: "research has also found that physician clothing can influence scores on board certification oral exams, in which a senior doctor assesses a younger doctor’s medical knowledge." If the perception by senior doctors that younger doctors are less qualified because of the way they dress, and the main detriment is suffered by women medical students and doctors, there's a real problem with disparate treatment and gender stereotyping that needs to be addressed.
Marcus was clearly trying to be helpful to medical students in telling them that wearing more formal or conservative clothes might be beneficial to them in the long run in terms of getting jobs, making patients comfortable around them and passing exams. No doubt there's a lot of value to her observations. The problem is when the message is being sent pretty much only to women.
Thursday, November 16, 2006
Challenge to School's "Opposite Sex Day" Survives Motion to Dismiss
The federal district court's decision in Stanley v. Carrier-Mills Stonefront School District No. 2 is over a month old, but it just appeared on Westlaw today (see 2006 WL 2710672).
In case you're just tuning into this case as we are, Lora Stanley is the parent or legal guardian of nine students in the Carrier-Mills Stonefront school district in southern Illinois. She sued the school district to protest "Opposite Sex Day" -- a day on which the school encouraged students to show their "spirit" by dressing like the opposite sex. Her objection is based on a religious belief founded upon Deuteronomy 22:5 -- "A woman must not wear men's clothing, nor a man wear women's clothing, for the LORD your God detests anyone who does this." I think, considering what men wore in Biblical times, a strict interpretation of this provision would actually cut in favor of contemporary cross dressing. I am, however, inclined to endorse Stanley's freedom to interpret the Bible as she wishes. I am also inclined to agree with Stanley that "Opposite Sex Day" day is objectionable, but for entirely different reasons. One concern is that this practice further marginalizes queer or transgender students by trivializing what they might be going through. Compare a "let's all show our school spirit by wearing turbans day." I doubt the school district would endorse that. Another concern is that "[teenage] boys [wearing] short skirts and large breasts [and] grop[ing] themselves as part of the day's activities" (from the Complaint) is potentially demeaning to women (and, in my opinion, in a way that queer drag is not).
So Stanley sued the school district alleging among other claims that the school's promotion of cross dressing fosters peer-on-peer sexual harassment for which the school district is liable under Davis v. Monroe County Board of Education. Specifically, she claims Opposite Sex Day fostered "a sexually hostile learning environment." The school district moved to dismiss, but the federal district court denied the motion. The judge determined that the facts Stanley alleged could, if proven, satisfy the legal standard: (1) knowledge of and deliberate indifference to sexually hostile environment on the part of school officials, and (2) harassment severe enough to have a concrete, negative effect on the students' education. The judge did acknowledge the Supreme Court's skepticism, expressed in Davis, about whether a single instance of sexual harassment could satisfy the standard, but explained: "at least in terms of the catalyst, this is not an issue because the District was on notice after Opposite Sex Day 2003 [the year before]. In terms of the prevalence of the harassing conduct, the Court is without sufficient facts to make a decision. To make a proper determination of the severity of harassing conduct, the Court needs the details of when, where and how often it occurred.... Without this information, the Court cannot say that plaintiffs cannot state a claim as a matter of law."
So I guess we'll all have to stay tuned to find out what happens to Opposite Sex Day under Title IX!
In case you're just tuning into this case as we are, Lora Stanley is the parent or legal guardian of nine students in the Carrier-Mills Stonefront school district in southern Illinois. She sued the school district to protest "Opposite Sex Day" -- a day on which the school encouraged students to show their "spirit" by dressing like the opposite sex. Her objection is based on a religious belief founded upon Deuteronomy 22:5 -- "A woman must not wear men's clothing, nor a man wear women's clothing, for the LORD your God detests anyone who does this." I think, considering what men wore in Biblical times, a strict interpretation of this provision would actually cut in favor of contemporary cross dressing. I am, however, inclined to endorse Stanley's freedom to interpret the Bible as she wishes. I am also inclined to agree with Stanley that "Opposite Sex Day" day is objectionable, but for entirely different reasons. One concern is that this practice further marginalizes queer or transgender students by trivializing what they might be going through. Compare a "let's all show our school spirit by wearing turbans day." I doubt the school district would endorse that. Another concern is that "[teenage] boys [wearing] short skirts and large breasts [and] grop[ing] themselves as part of the day's activities" (from the Complaint) is potentially demeaning to women (and, in my opinion, in a way that queer drag is not).
So Stanley sued the school district alleging among other claims that the school's promotion of cross dressing fosters peer-on-peer sexual harassment for which the school district is liable under Davis v. Monroe County Board of Education. Specifically, she claims Opposite Sex Day fostered "a sexually hostile learning environment." The school district moved to dismiss, but the federal district court denied the motion. The judge determined that the facts Stanley alleged could, if proven, satisfy the legal standard: (1) knowledge of and deliberate indifference to sexually hostile environment on the part of school officials, and (2) harassment severe enough to have a concrete, negative effect on the students' education. The judge did acknowledge the Supreme Court's skepticism, expressed in Davis, about whether a single instance of sexual harassment could satisfy the standard, but explained: "at least in terms of the catalyst, this is not an issue because the District was on notice after Opposite Sex Day 2003 [the year before]. In terms of the prevalence of the harassing conduct, the Court is without sufficient facts to make a decision. To make a proper determination of the severity of harassing conduct, the Court needs the details of when, where and how often it occurred.... Without this information, the Court cannot say that plaintiffs cannot state a claim as a matter of law."
So I guess we'll all have to stay tuned to find out what happens to Opposite Sex Day under Title IX!
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