Libby Ryan and Jordan D’Addeo are unlikely rabble-rousers. Both are A students and highly involved in their school and community. Libby is a four-time All-State musician and principal oboist in Connecticut’s All-State Band, winner of the Daughters of the American Revolution Citizenship Award, Class of 2016 Treasurer, a member of the National Honor Society, and a member of the student council who has donated over 400 hours of community service with various organizations in the area. Jordan is the class salutatorian with near-perfect SAT scores, winner of the Rensselaer Medal, National Merit Finalist, AP Scholar with Honor, and captain of the high school Quiz Bowl and math teams. They both love their school, their teachers, their friends, and their school administrators. And they are weeks away from graduating from Nathan Hale-Ray High School in East Haddam, Connecticut.
But as they prepare to celebrate with their classmates, they find themselves up against a tradition that distracts from the achievements that graduation is meant to recognize. By tradition, boys wear blue gowns at graduation; girls wear white. Also by tradition, boys and girls will file into the ceremony venue in separate lines, girls carrying flowers purchased out of class dues. This policy discriminates not only against transgender students and students with nonconforming gender identities, forced to publicly choose a gender, but also against female students who are literally draped in a symbol of female purity laden with gender stereotypes.
Graduation Gowns, Gender, and Controversy
Since early March, some students at Nathan Hale-Ray High School have been asking that the gender distinction be dropped at graduation and that students all wear graduation robes of the same color. To date, school administrators have not agreed to the change, and time seems to be running out. Last Tuesday, students were told they could choose a different color than the one that corresponded to their biological sex as long as they had the permission of their parents. The parental-permission requirement was dropped the next day, but the gender-specific robe color was not.
The school’s robing policy forces students to identify with a gender, and then makes gender the most visible identifying characteristic of students on the graduation stage. It divides the graduates into “male graduates” and “female graduates.” For what purpose? Only in some bygone century in which boys and girls were educated to fill prescribed gender roles could it have been said that gender was relevant to a high school graduation ceremony. It was, in fact, in the postwar period of the late 1940s and early 1950s, when clear gender roles were thought to be important to restoring social order, that most of these policies came about.
The only reason offered for differentiating girls and boys by color at graduation is tradition. But, of course, tradition—being the most significant source of outmoded, harmful gender stereotypes—is the worst possible reason for a sex-based classification. This case itself bears the traces of those stereotypes and the social order they are meant to support. While any color differentiation between the sexes would be objectionable, the particular gender-coding in this case exemplifies the hidden stereotypes often embedded in sex differentiation schemes. The masculine values associated with blue, to be worn by the boys, are ones of authority, competence, and success. In contrast, the feminist values associated with white, to be worn by girls, are ones of innocence, purity, and virtue. If you doubt the strength of these associations, imagine how odd it would seem if girls were told to wear blue, and boys to wear white and carry flowers.
Antidiscrimination Law and Its Underlying Principles
Antidiscrimination law is predicated on a basic principle: people should be treated as individuals rather than as members of a group, especially when the group to which they belong has been, historically, the subject of disadvantage in society. A corollary to this principle is that when individuals are treated merely as members of a group, there must be a sufficiently good reason for doing so.
As applied to actions of a public school district, at least two sources of law embody these principles: the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Title IX of the Education Amendments of 1972 (renamed the Patsy T. Mink Equal Opportunity in Education Act in memory of one of the law’s principal drafters and ardent defenders against attempts to undermine it). Both of these laws prevent a public school from arbitrarily classifying students by gender.
Under standard equal protection doctrine, a sex-based classification merits heightened judicial scrutiny and can survive only if the government provides an “exceedingly persuasive” justification, a high standard that dooms most such classifications. In communications with the complaining students, the school district has articulated “tradition” as the only explanation for the distinction in robe color for male and female students. If tradition were a sufficient explanation, the Equal Protection Clause would quite literally mean nothing, as tradition is the explanation for many discriminatory practices. The Supreme Court, rather, has used the Equal Protection Clause to break down those traditions that have worked to the disadvantage of particular groups in society, including women. As Justice Ruth Bader Ginsburg wrote in United States v. Virginia, in which the Court invalidated the male-only admissions policy of the Virginia Military Institute, gender classifications “may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”
Nathan Hale-Ray High School has certainly not offered an exceedingly persuasive justification for its actions—tradition doesn’t cut it—and it’s hard to imagine a reason that would explain the need for this type of classification. The arbitrary impulse to treat men and women differently is precisely what equal protection disallows.
Title IX dictates the same outcome. The statute is a broad-based mandate against sex discrimination by educational institutions that receive any federal funding. It states that “No person in the United States shall, on the basis of sex, be…subjected to discrimination under any education program or activity receiving Federal financial assistance….” This statute has been used to challenge gender inequality in many contexts—including athletics, school admissions, the treatment of pregnant and parenting students, and sexual harassment.
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. For example, as discussed in the recent spate of transgender bathroom controversies and discussed in a separate column today by Joanna Grossman, Title IX regulations expressly permit schools to provide different bathroom and locker room facilities on the basis of sex (although OCR has opined that schools do not have the power to dictate which facility a transgender student must use, and the U.S. Court of Appeals for the Fourth Circuit has deferred to this interpretation). Title IX regulations also expressly permit single-sex athletic teams, based on the premise that integrated teams would diminish athletic participation opportunities for women rather than enhance them. And in a controversial development (discussed here and here), public elementary and secondary schools have pushed for more leeway under Title IX to offer single-sex classes and schools, an exercise that has proven to promote stereotypes and inequality rather than the opposite.
But there is no graduation gown exception, nor any requirement that discrimination impose tangible or economic disadvantage before it becomes actionable under Title IX. As the U.S. Court of Appeals for the Seventh Circuit held in a recent case involving sex-specific grooming codes for athletes (discussed here), both the Equal Protection Clause and Title IX require that male and female students be treated the same. There, the court invalidated a public school rule that male basketball players had to wear their hair extremely short, while female basketball players could wear theirs at any length. There was no reason a boy with long hair couldn’t put it in a ponytail to avoid interference with play, just like the girls do. And even where courts have allowed sex-specific dress and grooming codes despite antidiscrimination mandates, they have required that they be equivalent, not laden with stereotypes.
Transgender students are also protected by Title IX, according to recent opinions by OCR and by the Fourth Circuit. Whether or not offering those students the right to pick a color (and a processional line) technically complies with those interpretations of the statute—a question for OCR or a court—it unnecessarily puts transgender students (and those who do not identify solely with one gender) in an unnecessarily uncomfortable position. As has been argued with some success in the bathroom cases, an accommodation that permits transgender students to use a special bathroom is not sufficient because it draws stigma and hostility to the student. This was one of the reasons that the Fourth Circuit sided with a transgender student, who sued despite such an accommodation. And just as gender is irrelevant to graduation for girls, it is irrelevant to transgender students regardless of birth sex or gender identity. There is just no reason to make it salient.
A Widespread Controversy That Could Be Easily Resolved
Despite the obvious incompatibility of the school’s policy with these legal provisions, the school district has stuck to its guns so far. It did take an opinion survey of the graduating class, which split evenly 35-35 over whether to continue the color-coding tradition. But schools cannot put their legal obligations to a vote, and the decision to end the practice should have been recognized as a matter of principle—and announced and defended—rather than floated as a tentative change. The status quo is always going to garner some support, even if those voting have no better reason for favoring the practice than the policymakers who implemented it in the first place. If the decision had been simply announced in a timely fashion, it is unlikely the school would have divided over the issue and faced the controversy it now faces.
In allowing students to choose what color to wear, Nathan Hale-Ray has gone the way of a number of other high schools in the country in allowing transgender and LGBT students to wear the color of the sex with which they identify. This compromise misses the point, which is not whether an individual student should be able to choose his or her gender identity, but whether schools should be able to force them to represent that identity in their graduation robe. The high school in nearby Glastonbury, Connecticut, which just this year changed its color-coded robe policy, recognized this. Eliminating this “antiquated tradition,” Principal Mary Bean told a reporter for the Hartford Courant, is a “relief” for “students who are already out as transgender or nonbinary, and for students who are not out, this sends the message that they don’t have to fit themselves into a box that they’re not comfortable with in order to celebrate a great life achievement by walking across the stage and getting their diploma in front of their family and peers.” In a similar policy change last year at Damascus High School in Montgomery County, Maryland, Principal Jennifer Webster pointed out that giving individual students the choice “brings about [a] conversation that [students] may or may not want to have, and probably shouldn’t have to have at a graduation ceremony, considering that … is gender really a significant issue in a high school graduation? It really shouldn’t be.”
The New York State Education Department ended the practice with one fell swoop, when it issued a policy guidance in July 2015 on the treatment of transgender and gender nonconforming students. Among other provisions, the document instructs schools to eliminate all gender-based policies “that do not serve a clear pedagogical purpose” because such “policies, rules, and practices can have the effect of marginalizing, stigmatizing, stereotyping and excluding students, whether they are transgender or [gender non-conforming] or not.” In the example that follows, the guidance specifically mentions a school that had previously required blue gowns for boys and white ones for girls but then switched to blue gowns for everyone.
Libby and Jordan simply want their school to do the same thing. In addition to the importance of the message that “both genders are equal,” Libby stated in a local news interview, “wearing robes of the same color … would allow transgender students or students who don’t conform to a single gender to feel more comfortable at graduation.”
It is still not clear where this is headed. There is such flux right now among schools that the president of one Cap & Gown supplier described orders by schools that were “already packed and shipped to the schools that they’ve called us and changed.” But while many schools have changed their color-coded robing policies, Nathan Hale-Ray is not alone in dragging its feet. This may be yet another practice that violates Title IX, but lingers until a court intervenes to stop it. It need not be that way; schools could listen to the young voices speaking out in the name of equality.