There is a lot to be said against sex-specific dress and appearance codes in schools. As we have written previously on this site, such codes tend to reinforce gender stereotypes by policing appearance to conform to hidden messages about how boys and girls should think of themselves, and each other. For example, the East Haddam Connecticut rule, still being enforced in 2016, that required girls to wear white robes and carry flowers at their high school graduation and boys to wear blue robes (no flowers), implicitly conveyed a norm of sexual purity and adornment for girls, and a corresponding norm that boys are to be taken seriously on grounds other than their looks. Rules like this are a reflexive part of a system that routinely classifies people by gender, sometimes with the purpose, and often with the effect, of maintaining a gender hierarchy. This is to say nothing of the additional harm that such gendered rules might impose on students who are transgender. Sex-based dress and grooming policies are typically defended on the ground that they are harmless enactments of tradition; challenges to them are dismissed as trivial.
The decision of the Poth Independent School District (Poth ISD) in Poth, Texas, a small town south of San Antonio, demonstrates how breathtakingly inane such policies can be, and how non-trivial their consequences. According to a recent article on CNN, the School District has a rule that boys not wear their hair “beyond the ear opening on the sides nor beyond the top of a dress shirt collar in the back.” Because of this policy, a sixteen-year-old boy in that district was forced to withdraw from the school in the middle of the year and be homeschooled. Newt Johnson decided to grow his hair beyond the permitted length in order to help his little sister, an 11-year-old who is undergoing a grueling course of chemotherapy and dialysis for Wegener’s disease. The treatment was causing Maggie to lose her hair, and Newt thought he could help by growing his hair long enough to turn it into a wig for her.
Principal Todd Deaver decided not to allow Newt to return to school unless he cut his hair to comply with the school’s grooming policy. Superintendent Paula Renken upheld the principal’s decision, explaining that “Principal Deaver performed his duties as he is expected to under the policies and procedures in place. He and his staff . . . enforce the board directed rules and guidelines fairly and consistently.” Fairly and consistently, maybe; sensible, no.
The Lack of Common Sense Behind the School District’s Decision
Why is consistency to be lauded when the principal was confronted with a unique situation? The CNN article notes that the school district “raised over $3,000 for the Johnson family to help with hospital expenses, along with collecting hundreds of cards from fellow students and staff.” This was a nice gesture, to be sure, one that the family likely appreciated as it navigated a difficult situation for their daughter. But what about the gesture that Maggie’s brother, Newt, was particularly well positioned to offer; it was the closest thing to Maggie’s natural hair, that she no doubt wished she still had. This gesture was inconvenient only to Newt, a young man trying simply to help his sister, and it was a gift that was possibly more important to Maggie and her family than the cash. What does “consistency” mean in the face of such a unique situation? Rather than presenting a case for consistency, application of the usual rule to this unusual situation makes a mockery of the rule. Any rule that could produce such a result must itself be highly suspect.
Besides the draconian application of this outdated hair length policy, the principal’s decision raises grave questions about his judgment. What kind of school gives up the opportunity to uphold role models for humane, self-sacrificing support on behalf of those with special needs? What kind of school places the value of gender conformity and order above the value of a unique teaching opportunity to further regard for others, even love of family? Here, the school exercised its discretion to punish a student already dealing with hardship—denying him the opportunity to continue his education with his peers and teachers.
The irony, here, is that Maggie’s fear of losing her hair is, in significant part, a function of the same gender norms cultivated by dress and appearance standards like those of the Poth Independent School District. If it were Newt that was losing his hair, it is unlikely that Newt, or Maggie, would place a high value on Maggie growing out her hair for Newt. In this sense, Poth has contributed to a problem and then prohibited its solution.
Potential Legal Challenges to Poth’s Discriminatory Hair Policy
This situation should have and could have been resolved through the exercise of good judgment and common sense—first by the principal, and then by the superintendent. Imagine the meeting where adults entrusted with the education of a town’s young people considered these facts and agreed, “yes, the only solution is to kick this boy out of high school.” Instead of intervening to correct the principal’s poor decision, the superintendent praised him for applying the rules “fairly and consistently.” But what if the rules themselves are unlawful?
Poth ISD is a public school district that is required to conform to both the Equal Protection Clause of the federal Constitution and Title IX of the Education Amendments of 1972, both of which restrict public schools from discriminating on the basis of sex. Challenges to sex-specific dress and grooming codes—like the one applied by Poth ISD—have been brought primarily under Title VII, which bans all forms of sex discrimination by employers. But the same principles are often relevant to claims under the Equal Protection Clause, which applies to governmental entities, and Title IX, which applies to educational institutions.
Although Title VII, Title IX, and the Equal Protection Clause have been used to invalidate virtually all rules that openly classify individuals on the basis of their gender, there is a longstanding anomaly in Title VII case law that has permitted employers to maintain sex-specific dress and grooming codes as long as they impose equal burdens on men and women. Courts, for example, have upheld rules requiring men to wear suits and women to wear dresses. They have also upheld policies requiring women to wear makeup and nail polish, while prohibiting men from wearing either.
Decisions upholding these kinds of rules are anomalous because they seemingly permit precisely what Title VII clearly forbids: treating employees differently on the basis of sex. Not surprisingly, the reasoning of these decisions is generally unconvincing. The undue burden approach builds in a safe harbor for sexism by conflating the question whether the restrictions in question apply to both men and women, with the separate question about whether the restrictions themselves are legitimate. Moreover, many of these decisions predate the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the Court held that sex stereotyping is a form of illegal sex discrimination. Based on the reasoning of Price Waterhouse, some courts have held that transgender employees cannot be fired simply because they assume an outward appearance that does not conform to their biological sex, recognizing that it is an act of sex stereotyping to say that a person born male must dress like a man at work. But cisgender women have found much less success with the same argument. A shocking example of this oversight is Jespersen v. Harrah’s Operating Co., in which an en banc panel of the U.S. Court of Appeals for the Ninth Circuit upheld a grooming code that required female bartenders to wear teased hair, a full face of makeup, and painted fingernails, while requiring of male bartenders only that they have short hair and be clean.
Poorly reasoned court opinions aside, sex-specific dress codes are obviously rooted in gender stereotyping. There is no other explanation for demanding, for example, that professional women dress differently than professional men, when both could wear business suits with pants.
Public school students are not limited, however, by the court interpretations of Title VII, which applies only to employment relationships. Sex-specific dress codes can also be challenged under Title IX and the Equal Protection Clause, and the standards there may indulge less sex stereotyping than Title VII seems to allow.
A Hair-Raising Precedent: Hayden v. Greensburg Community School Corp.
In Hayden v. Greensburg Community School Corp., the U.S. Court of Appeals for the Seventh Circuit ruled that A.H., a boy who was repeatedly cut from the basketball team because of his refusal to cut his hair short—“above the ears, eyebrows, and collar,” per the policy of the boys’ basketball coach—was the victim of illegal sex discrimination. Female athletes at the same school were not required to wear their hair short for any sport. A.H. cut his hair so he could play basketball in seventh grade, but says he “didn’t like himself” and grew it back. He even moved in with his grandparents temporarily in the hopes of playing for a different school without such a strict policy.
In his lawsuit, A.H. claimed that the short-hair policy was unlawful under the Due Process and Equal Protection Clauses of the federal Constitution, as well as under Title IX, the federal law banning sex discrimination by educational institutions. The court considered A.H.’s due process claim with some sympathy, but ultimately rejected it. Although there are cases suggesting that the right to choose one’s hair length and style is an aspect of liberty protected by the Fourteenth Amendment, the court concluded that the choice of hair style could not, given other Supreme Court precedents, rise to the level of a fundamental right.
The court agreed, however, with A.H. that the policy violated both the Equal Protection Clause and Title IX because it singled out at least some boys for a grooming requirement from which all girls were exempt. The court raised but did not decide whether the general law of dress and grooming codes survived the Supreme Court’s ruling in Price Waterhouse. It assumed that they did—though those decisions are certainly ripe for reexamination. It then tackled the central question: Is a school justified in restricting the hair length of male athletes, but not female ones? The answer was “No.”
The parties, according to the court, litigated this case as if it revolved solely around the gender-differentiated hair-length policy. The school district did not make the argument before the trial court that the rule regarding hair length was just one piece of a broader grooming code that imposed restrictions on male and female athletes alike. By analogy to the Jespersen case, the school might have prevailed in arguing that male and female athletes were both burdened by dress and grooming rules. But the only distinction in the record related to hair length.
The court thus focused on a relatively straightforward instance of sex discrimination. Under the Equal Protection Clause, a governmental actor must offer an exceedingly persuasive justification for distinguishing between individuals or groups on the basis of sex. The government bears the burden of proof and, under this exacting standard, usually loses. Up against a tough legal standard, the school district in Hayden offered little by way of a defense, other than a desire to promote team unity and project a “clean cut” image for its athletes. It offered no explanation as to why female athletes did not need team unity, nor why a boy cannot be “clean cut” with longer hair.
The hair rule fared no better under Title IX, a broad-based mandate against sex discrimination by educational institutions. Unlike the Equal Protection Clause, Title IX does not invite courts to balance the harm of a sex-based classification against the entity’s reason for adopting it. Rather, it simply bans sex-based decision-making unless Congress or the agency charged with implementing Title IX (the Department of Education’s Office for Civil Rights) expressly allows segregation or differential treatment in a particular context. The school district in Hayden could not successfully satisfy either the constitutional or statutory standard for equality. The federal appellate court thus ruled for the young plaintiff, who wanted nothing more than to keep the hair he treasured and play on the school basketball team.
“Skirts, Skorts or Jumpers” versus “Pants or Shorts”
In a recent case in North Carolina, Peltier v. Charter Day School, Inc., a federal district court held that a public school’s sex-specific dress code, which required girls to wear “skirts, skorts or jumpers” while requiring boys to wear “pants or shorts,” violated the Equal Protection Clause. (The plaintiffs also alleged a violation of Title IX, and this particular court concluded that the statute does not apply to appearance codes.)
The school argued that it adopted the sex-specific uniform policy in order to preserve the traditional values of the school and to maintain order. It also made clear that it was using the uniform policy to reinforce gender differences. The school urged the court not to look at the uniform policy in isolation, but rather as one component working “seamlessly together in a coordinated fashion in a disciplined environment that has mutual respect between boys and girls and between each other as students.” Moreover, the school argued, the sex-differentiated uniforms impose “visual cues” that remind students to “act more appropriately” toward the opposite sex. The court was not convinced that the uniform policy furthered these interests—a requirement under equal protection analysis—even if they were deemed acceptable constitutional goals.
The school further argued that the standard that has been used under Title VII should be applied under the Equal Protection Clause, which would allow the school to maintain a sex-differentiated dress code as long as the requirements conformed to contemporary standards of grooming in society and did not impose an undue burden on one sex but not the other. The court, however, did not reach the question whether that analysis is appropriate under the Equal Protection Clause—leaving open the possibility that the constitutional standard would be more exacting. Even under the more lenient standard urged by defendants, the court explained, this policy could not survive. First, it is not clear that a “skirts only” policy is consistent with contemporary community norms for dress. As the court wrote, “Women (and girls) have, for at least several decades, routinely worn both 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.”
More importantly, the court concluded that the uniform requirement did impose an unfair burden on female students. As the court explained:
Yes, the boys at the School must conform to a uniform policy as well. But plaintiffs in this case have shown that the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs and/or uncomfortable layers of leggings under their knee-length skirts in order to stay warm. . . Defendants have offered no evidence of any comparable burden on boys. . . . Therefore, the skirts requirement causes the girls to suffer a burden the boys do not, simply because they are female.
The girls have to be permitted to wear pants or shorts, just like the boys. Schools cannot be permitted to design policies based on “traditional” stereotyped thinking about how boys and girls should look. The same argument applies to Poth ISD’s hair-length policy.
There may be more to the story about Poth ISD and its discriminatory grooming policy. But on the facts described in the CNN article, the school district showed poor judgment in enforcing its policy in this instance. Beyond that, it is unlikely the policy could survive either a constitutional challenge or a challenge under Title IX.