Federal Appeals Court Says Title IX Bans Discrimination in School Dress Codes

The Court Said North Carolina Public Charter Schools May Operate Outside Constitutional Bounds but Are Subject to Title IX, the Landmark Sex Discrimination Law

August 9, 2021 2:30 pm

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RICHMOND, Va. — A federal appeals court ruled today that Title IX, the federal law banning sex discrimination in schools, prohibits discriminatory dress codes in a case involving a K-8 public charter school that requires girls to wear skirts as a condition of attending school. The appeals court sent the case back to the trial court to decide if the skirts requirement in fact violates the law. At the same time, the court found that North Carolina public charter schools aren’t required to comply with the Constitution. The American Civil Liberties Union, the ACLU of North Carolina, and the law firm of Ellis & Winters LLP originally filed a challenge to the skirts requirement on behalf of three North Carolina students.

The skirts requirement was intended to promote “traditional” gender roles at school. The students, who were in kindergarten, fourth, and eighth grades when the case was filed, argued that the skirts requirement sent a message that they were different and less than boys, and that it restricted their movement and distracted them from learning.

“I wanted my daughter and all the other girls at her school to know that they can learn, move, and play on equal terms as the boys in school,” said Bonnie Peltier, the mother of a former Charter Day School student who was a client in the case. “I’m relieved that a federal court of appeals recognized that forcing girls to wear skirts or miss classroom instruction time can be a form of sex discrimination.”

Dress codes have historically been used to police girls in schools, disproportionately targeting girls of color, gender –non-conforming girls, and trans girls, among others. Dress codes that enforce different rules for boys and girls can further harm transgender, non-binary, or gender non-conforming students by reinforcing binary sex categories.

“We’re pleased that today’s decision recognizes that Title IX’s broad promise of equal opportunity for girls applies to discriminatory dress codes,” said Galen Sherwin, senior staff attorney with the ACLU Women’s Rights Project. “Dress codes that enforce different rules based on old-fashioned conventions of how girls should dress, look, and behave while intentionally signaling that girls are not equal to boys perpetuate gender stereotypes and should have no place in our public schools. But we are disappointed that the court placed North Carolina public charter schools beyond the constitutional guarantee of equal protection under law for all students. We will continue to fight for our clients and girls like them across the country.”

“Uniform policies that prohibit girls from wearing pants to school not only infringe on girls’ right to learn, but are also a transparent tool to control girls’ bodies and disproportionately harm LGBTQ+ and Black and Brown students,” said Irena Como, senior staff attorney at the ACLU of North Carolina.

“No, this is not 1821 or 1921. It’s 2021,” Circuit Judge Barbara Milano Keenan said in an opinion dissenting from the conclusion that public charter schools may operate outside constitutional bounds. “Women serve in combat units of our armed forces. Women walk in space and contribute their talents at the International Space Station. Women serve on our country’s Supreme Court, in Congress, and, today, a woman is vice president of the United States. Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys.”

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