Sex Discrimination

Kindergarten Bars Boys from Wearing Ear Studs, Parents Sue for Sex Discrimination

The school policy allows girls to wear small earrings, but doesn't allow them for boys.

|The Volokh Conspiracy |

On its face, the policy clearly does discriminate based on sex, and thus seems like a facial violation of Title IX and a presumptive violation of the Equal Protection Clause (since the kindergarten is a public charter school). But courts in employment discrimination cases have long upheld certain kinds of sex-differential grooming policies, such as hair length policies, so long as both men and women are subjected to standards that are seen as socially accepted for their sex. Here is an excerpt from Hayden ex rel. A.H. v. Greensburg Community School Corp. (7th Cir. 2014), the precedent on which the plaintiff chiefly relies, which struck down a male-only hair-length limit for a high school's baseball and basketball players:

Whether and when the adoption of differential grooming standards for males and females amounts to sex discrimination is the subject of a discrete subset of judicial and scholarly analysis. This line of authority—much of it pre-dating the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S.Ct. 1775, 1790-91, 104 L.Ed.2d 268 (1989) (plurality) (employer may not demand that employee's appearance and deportment match sex stereotype associated with her gender)—is most developed in the employment context, but it has a parallel in the school context as well. See, e.g., Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979) (holding that workplace dress code which required women but not men to wear uniforms constituted sex discrimination in violation of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)); id. at 1032 ("So long as [personal appearance regulations] find some justification in commonly accepted social norms and are reasonably related to the employer's business needs, such regulations are not necessarily violations of Title VII even though the standards differ somewhat for men and women."); Jespersen v. Harrah's Op'g Co., 444 F.3d 1104, 1110 (9th Cir.2006) (en banc) (majority) (sustaining make-up requirement for female employees in absence of objective evidence that such requirement imposed unequal burden on women) ("We have long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an `unequal burden' for the plaintiff's gender.") (citations omitted); id. at 1115-16 (Pregerson, J., dissenting) (contending that make-up requirement constituted the sort of impermissible sex-stereotyping proscribed by Price Waterhouse); id. at 1117 (Kozinski, J., dissenting) (contending that because make-up requirement had no genuine equivalent in grooming standards for male workers, question of fact presented as to whether standards imposed unequal burdens on men and women); Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir.1977) (grooming standards imposing different limitations on hair length and style for male and female employees did not constitute sex discrimination absent allegation that standards were subject to unequal enforcement between the sexes); Earwood v. Continental Se. Lines, Inc., 539 F.2d 1349, 1350 (4th Cir.1976) ("sex-differentiated grooming standards do not, without more, constitute discrimination under Title VII of the Civil Rights Act of 1964"); Knott v. Missouri Pac. R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975) ("Defendant's hair length requirement for male employees is part of a comprehensive personal grooming code applicable to all employees. While no hair length restriction is applicable to females, all employees must conform to certain standards of dress. Where, as here, such policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities."); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1092 (5th Cir. 1975) (en banc) ("It does not appear that defendant fails to impose grooming standards for female employees; thus in this respect each sex is treated equally…. [B]oth sexes are being screened with respect to a neutral factor, i.e. grooming in accordance with generally accepted community standards of dress and appearance.") (internal quotation marks and citations omitted); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C.Cir.1973) (grooming regulations that prohibited men from wearing long hair and required women with long hair to secure it did not constitute sex discrimination violating Title VII: "Giant enforces strict grooming regulations against both male and female employees."); Harper v. Edgewood Bd. of Educ., 655 F.Supp. 1353, 1356 (S.D.Oh. 1987) (school did not violate students' equal protection rights by enforcing school board's dress regulations and prohibiting students from attending school prom dressed in clothing of opposite sex; school dress code did not differentiate based on sex but required students to dress in conformance with community standards); Johnson v. Joint Sch. Dist. No. 60, Bingham Cnty., 95 Idaho 317, 508 P.2d 547, 548-49 (1973) (school dress code that prohibited female students from wearing slacks, pantsuits, or culottes impermissibly discriminated on the basis of sex); Scott v. Bd. of Educ., Union Free Sch. Dist. No. 17, Hicksville, 61 Misc.2d 333, 305 N.Y.S.2d 601, 606-07 (N.Y.Sup.1969) (similarly finding invalid provision of school dress regulations prohibiting girls from wearing slacks except with permission of principal when warranted by cold weather); Jeremiah R. Newhall, Sex-Based Dress Codes and Equal Protection in Public Schools, 12 Appalachian J. Law 209 (2013); Jennifer L. Greenblatt, Using the Equal Protection Clause Post-VMI to Keep Gender Stereotypes Out of the Public School Dress Code Equation, 13 U.C. Davis J. Juvenile Law & Policy 281 (2009).

Whether and to what extent these cases survive Price Waterhouse is a question that we have not yet had occasion to address. The Ninth Circuit has concluded that sex-differentiated grooming standards remain permissible after Price Waterhouse, see Jespersen, 444 F.3d at 1109-12Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 875 n. 7 (9th Cir.2001), although it has left the door open to proof that some sex-specific standards may be the product of impermissible sex-stereotyping, Jespersen, 444 F.3d at 1113. But we may assume, without deciding, that this line of authority remains mostly if not wholly unmodified by Price Waterhouse.

The relevant and dispositive point here is that this line of precedent has been ignored entirely in this appeal. The parties have litigated the hair-length policy in isolation rather than as an aspect of any broader grooming standards applied to boys and girls basketball teams.

We were told, when we raised the subject at oral argument, that male and female athletes alike are subject to grooming standards; and indeed the parties jointly stipulated below for purposes of the preliminary injunction hearing that whereas only the boys basketball and baseball teams have hair-length policies, the other school athletic teams do have grooming policies. But the content of those grooming policies has never been established, and the fact that there are grooming standards for both girls and boys teams was not even mentioned in the stipulated facts submitted to the district court for purposes of resolving the case.

The stipulated facts reveal only that there is a hair-length policy for the boys basketball team but for not for the girls basketball team (or, for that matter, any other girls team). As such, the stipulated facts indicate that a boy wishing to play basketball at Greensburg is subject to a requirement, impinging upon a recognized liberty interest, that a girl is not.

Presumably in this case, the school will indeed argue that its policy provides extensive grooming rules (albeit not identical ones) both for boys and for girls:

Appropriate undergarments must be worn and not visible. Camis for girls and undershirts for boys are allowed, but not required, and must not show.

Make-up may not be worn until the 7th grade and must be conservative in nature.

Tattoos and body piercings, other than girls' earrings, are not allowed. Earrings must be limited to 1 earring per ear. Large, dangling or hoop-type earrings are not allowed.

Jewelry other than watches for boys or girls, and small earrings on girls, may not be worn. This includes bracelets. Bracelets are not allowed. Official RMCA bracelets are allowed to be worn.

Necklaces may be worn but should be inside the shirt.

Hairstyle and hair color must be conservative in nature. Boys' hair must not extend below the top of the shirt collar in the back, the bottom of the ears on the sides or the eyebrows in front. Mohawk, faux hawk, no symbols, shapes or designs of any kind shaved into the head or anything that inhibits the learning environment as determined by the campus principal.

Hair may not be spiked. Large hair decorations may not be worn. Bandanas may not be
worn. Highlights must be two tones lighter or darker than the student's natural hair color.

No highlights that are not a natural hair color.

No pocket chains or hats may be worn in the building.

And the Supreme Court's pending case on whether gender identity discrimination violates Title VII may ultimately affect the analysis as well, depending on what reasoning the Court endorses. You can read the plaintiff's motion for a temporary restraining order, and here's the school's public statement in response (its legal arguments have not yet been filed):

Rocky Mountain Classical Academy works hard every day to create a positive school environment for all its students. Since the School's opening, an important component of this has included a dress code for all students. Our dress code is part of our overall student code of conduct, which expects students to uphold a high standard of excellence and contribute in a positive fashion to their class and the school. Our dress code is published on our website and contained in the Parent Student Handbook, which all parents must review and sign at the beginning of each school year. The mother in this situation signed the Parent Student Handbook at the beginning of the year like all other parents. She was aware of RMCA's dress code prior to enrolling her son in Kindergarten.

As with every other parent, numerous RMCA employees have asked the mother to bring her son to school in compliance with the dress code, which would mean removing his earrings when he is at school. She has refused and appealed her disagreement up the chain of command to the RMCA Board, which upheld the dress code after a public meeting on December 3, 2019. Once the Board made its final decision, the School instructed the mother to comply with the dress code by December 9, but she continued to refuse. This left the School no choice but to suspend the student for willfully disobeying the School's rules. The School will continue to insist that this family, like every other, obeys the RMCA dress code, which contributes towards the positive educational environment that all RMCA families enjoy each day.

 

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  1. If this isn’t the decline and fall of a great culture, I don’t know what is.

    1. The rot set in pretty quickly. This whole “trans” mania only launched a couple of years ago. Now people lose jobs over mere casual assertion that a boy is a boy and a girl is a girl.

      1. O tempore, O mores.

        1. Does your snarky comment mean that you are defending the judge who said that the view that men are men and women are women is extremist and out of bounds in legitimate discourse?

          1. It’s saying the wankery about the fall of civilization has been going on for a long time.

            I do think insisting on a gender binary is pretty unscientific and looks just about exactly like the previous whinging about the gays, but it’s the melodrama in the above comments I’m taking issue with.

            1. “I do think insisting on a gender binary is pretty unscientific and looks just about exactly like the previous whinging about the gays,”

              The entire debate has nothing to do with science.

              The debate is about to what extent we should accommodate males who wish to be labeled and treated as women, and to what extent we should shun women who are uncomfortable sharing female-only spaces such as bathrooms, showers, prison cells, and rooms in battered women’s shelters, which people who they might not view as women. (and vice versa, of course).

              And of course the English judge’s decision was ridiculous.

              1. Really? I thought the debate was about males wearing earrings, which has been going on in pop culture since the 1980s.

            2. “…looks just about exactly like the previous whinging about the gays…”

              So you’re saying gay marriage is going to lead to men being allowed in women’s locker rooms? Carry on, clinger!

  2. OK, clinger.

  3. This seems to me to be a line of cases that is eventually going to be overturned. Dress codes are constitutional, but you can’t force a trans boy to dress up as a girl. In addition to equal protection issues, it raises first amendment issues as well.

    1. There is no such thing as a “trans” kindergartner.

      1. There is no such thing as a “trans boy”.

        1. Sure there is.

          And this dress code exception isn’t limited to kindergarten.

  4. Makes me think of a disagreement between Scalia and Kennedy. I can’t remember the full details, but it was something like “the court should only protect un-enumerated rights that are long-standing traditionally acknowledged right.” to which Kennedy replied “so long-standing traditionally disadvantaged groups have no rights”.

    That is, sex-based dress codes are obviously sex-based discrimination. But they allow them because they’re traditional and in some places popular. The fact that they can’t be defended on the merits, for some reason, never bothers the people making these arguments.

    1. The issue with Kennedy’s reasoning, however, is that it imposes no discernible limiting principle on the scope of substantive due process

      1. And the problem with Scalia’s is that it defends injustice.

        1. If you want to arrogantly presume that your position is definitely correct on thorny philosophical issues like abortion then fine call it injustice. But its a bit juvenile

          1. If enshrining traditional bigotry and right-wing backwardness is your thing, try to enjoy your lifetime of political failure and cultural irrelevance . . . until replacement, which will conclude your participation.

            1. Reverend I dont think the third world traditionalist catholics will be on board with your trans/gay/abortion views even if they agree with your banana republic economic policies. See Hispanic votes in cali referendum on various social issues.

              1. By treating immigrants shabbily, conservatives are likely hastening Hispanics’ modernization with respect to treatment of gays. People who have been demonized by bigots seem likely to become hostile to bigotry in general.

          2. If you want to arrogantly presume that your position is definitely correct on thorny philosophical issues […]

            Then I’d be no different from 99% of humanity who routinely believes their view is the right one.

            That said, I didn’t actually make any claims on particular issues, I pointed out the inherent problem with Scalia’s view. The man had no problem defending obvious injustices just because they were “traditional”.

          3. We’re not talking about abortion here, we’re talking about schools that didn’t want to let girls wear pants or boys grow their hair long.

            Hard cases might be hard, but this ain’t it.

    2. “The fact that they can’t be defended on the merits, for some reason, never bothers the people making these arguments.”

      The tradition is the merit.

      Once you burn down all traditions, you are left with chaos.

      1. “Tradition” might be a yellow flag and give you pause to consider why something is done that way, but no, it’s not a merit on it’s own. If it was, slavery would still be around. It’s far more traditional then any notion of “human rights”.

      2. re: “The tradition is the merit.”

        No, it’s not. Traditions start for reasons. Sometimes those reasons are good and still valid. Those traditions should be maintained. Sometimes the traditions are neutral. Those traditions can be maintained or ignored. But some traditions are based on circumstances that are no longer true. Some traditions are actively harmful to followers in the new circumstances. Those traditions should be quietly but deliberately set aside.

        If you recognize that traditions start for reasons, then choosing to burn down (some) traditions leaves you with rationality and judgement, not chaos.

        1. There are just about none left. Chaos it is.

          1. One great American tradition involves its better elements overcoming those who have pushed successive waves of ignorance and intolerance — often related to skin color, immigration, religion, or perceived economic pressures — aimed at Italians, blacks, Jews, the Irish, women, Catholics, Asians, gays, agnostics, Hispanics, Muslims, eastern Europeans, other Asians, other Hispanics, and others.

            That is a great candidate for America’s best tradition.

    3. Are you bothered that the government spends way more studying menstruation in women than in men? Not saying that earrings themselves are an example but the fact that most normal people are okay with seeing a youthful woman in a bikini but not a hairy fat man derives from inborn biological factors governed by extension by the laws of nature and are hardly capricious arbitrary rules. It only seems that way if you subscribe to the faithbased dogma that men and women are carbon copy equal.

      1. Traditionally in nature, the male of the species is more colorful and “adorned” than the female. It’s also that way in most human cultures.

        So nature’s law is pretty clear on this one. Let the boy wear earrings.

  5. “Dress codes are constitutional, but you can’t force a trans boy to dress up as a girl.”

    I would imagine you couldn’t force him to dress up as a boy, either. That could complicate sex-specific dress codes.

    Hopefully they’ll just overturn any dress code in public school as a violation of the first amendment.

  6. The cases cited in the opinion above yield no coherent standard when Hopkins is taken into account.
    Pre-Hopkins (from what I can make out) : Sex differentiated grooming standards are fine so long as they 1) accord with commonly accepted community standards 2) applied in an evenhanded manner 3) and are reasonably related to a business need.

    Hopkins threw a wrench into this standard, effectively declaring that some sex differentiated standards are so egregious and reactionary seeming that they constitute impermissible discrimination by way of sex stereotyping. All grooming standards in some sense effectuate sex stereotypes.
    Post hopkins we have no way of determining what are commonly accepted community standards as half of the country has wildly different views on the matter than the other. Will the inquiry be localized?

  7. Another clear example of the evils that are a predictable consequence of government monopoly. If parents had to choose their school, and if government didn’t insist on a prosecution monopoly or on victimless crimes, parents would choose the school and be responsible for suing or changing schools for contract violations. This kind of thing would happen all the time, be handled speedily and without fuss, and wouldn’t even make the local news.

    1. Do you contend that bigoted (or nonsense-teaching) schools should be funded by the public?

      1. Reads like he is contending that no schools should be funded by the public (at least, by taxes)

        1. Amen!

        2. I tend to disregard arguments along the line of ‘no public schools, no public roads, no stop signs . . .’

      2. To the same extent bigoted or nonsensical marriages are. Why shouldn’t people be entitled to state accommodation of sexual preference in education?

        1. Clarifying: I am simply parroting the Reverand’s language here. I am simply saying that courts should be neutral on these things. If they think animosity is a bad thing, they should refrain from arguing that their own animosity is a suitable basis is for action. Just because the Rev. Kirckland uses a different vocabulary to express his animosity (e.g. “bigoted discrimination” rather than e.g. “perverse preference”) doesn’t conceal the fact that what he is expressing is an essentially similar kind of moral disapproval.

          In general I think enforcing morality is a permissible state objective. However,

          1. Courts reviewing laws should apply this neutrally, to moral principles they personally disagree with, not just ones they agree with.

          2. Courts should avoid constitutionalizing their own personal moral principles or reading them into statutes too much.

          3. In general, if moral principles have been around a long time and/or have been proposed by serious philosophers and scholars (even if new ideas) and there is no explicit mention of them in constitutional text, it is up to the legislatures to decide whether to adopt or abandon them, and it is not for courts to decide that they are irrational (or hate-based) by a simple majority vote.

      3. I can’t speak for ABC but I do think that whatever bigoted school churned you out should also be funded by the public.

        The logic goes that if you have an education, you are more likely to become a productive member of society rather than a mugger. So I am better off if you have an education. Scale that and you have a compelling case for public funding of education.

        That does not, however, mean that the public funding must be spent via government-run institutions. The GI Bill grants money to the student and lets the student spend it at either public or private institutions. The fantastic success of the GI Bill proves that people are quite good at deciding for themselves what educational institutions work for them. Are there some poor institutions in the mix? Of course. But the evils of sorting them out outweigh the costs.

        Note, by the way, that many other countries with publicly-funded educations nevertheless spend at least some of that money through private institutions. This is hardly a unique or new model.

    2. Ah yes, poor parents will just sue their schools privately “all the time” with the money they don’t have. This is a preferred option? Limiting redress of issues like this to people who can afford to sue in civil court?

      Well, at least that view jives with the fact you can buy yourself out of prison for running a teenage prostitution ring from your mansion in Florida.

  8. Taking ideas to their logical extremes can result in backlashes that lead to retracting the original idea.

    This is one of the reasons why countries with a tradition of active legislatures and cooperating, compromising politicians tend to be better at both implementing reforms peaceably and getting them to stick than countries where decisions are made by courts and ideological, my-way-or-the-highway politicians.

  9. “The school policy allows girls to wear small earrings, but doesn’t allow them for boys.”

    Impossible; there are no “boys” or “girls”, so the rule makes no sense. Case is moot until science is re-instated as public policy/

    1. Or, just the fact that boys and girls, men and women, have been commonly wearing earrings since the 1980s. No need to bring gender identity into this. This is as arbitrary as saying girls can’t wear pants.

  10. And as I have noted before, from a strictly neutral, strictly logical point of view, homosexuality is sex discrimination. It is unreasonable, it defies the courts’ most basic claims to legitimacy, for judges to assert that the constitution itself protects what their political friends do, but prohibits what is logically and neutrally exactly the same thing when done by their political enemies.

    You cannot claim that sexual preference in all sorts of things that were traditionally private – education, adoption, etc. etc. is immoral, and then turn around and claim that the very idea that sexual preference in sex and sex alone is immoral is somehow irrational.

    Courts continue to describe sexual preference in everything but sex in not just moral but distinctly homophobic terms. Sexual preference is described as “scourage” “invidious,” not “legitimate,” not “bona fide,” etc.).

    Here there can be no serious argument that the “descrimination” involved is being prohibited because of any actual state interest in the matter. Rather, the rationale here is that sexual preference is itself somehow a bad thing, something the state should stamp out. No other reason is given, no other reason it seems need be given, than the fact of sexual preference itself. Preference bad, therefore prohibited.

    That, exactly, is what homophobia is.

    A majority of the Supreme Court has said that the idea that sexual preference is bad, by itself, is not not only not sufficient basis for state action, but represents animosity on the state’s part violating the rights of the people with preference. A law based on the idea that sexual preference is bad in and of itself cannot stand.

    If it takes that view seriously, it should abide by it when its friends’ interests are at stake, not just when its enemies‘ are.

  11. Also, my modest proposal here is that if you want to avoid liability, have only single-sex schools, which remain legal.

    Logically, the path with the least liability is the path the law incents. Running single-sex schools would insulate you from sex discrimination claims, which are completely unavoidable if you take any other course of action. Therefore, “sex discrimination” Invent and encourage single-sex schools, and disincent and discourage coed ones.

    1. How would running two sex-separated schools obviate the instant lawsuit that the girls school permits earrings and the boy’s school doesn’t?

      1. Easy. The boys’ school doesn’t treat boys and girls differently – it prohibits earnings for everyone – and the girls’ school doesn’t treat boys and girls differently – it allows earrings for everyone. No namable defendant could fairly be accused of treating boys and girls differently. The administrators of each school would all be treating all their students exactly the same.

  12. (slightly off-topic, perhaps)
    In the OP, I noticed the ban on wearing hats. Eugene (or others): Does this apply to the wearing of religion-based headgear? E.g., what an observant Jew or Muslim might wear. I am assuming that, by now, this is an issue that must have been litigated over-and-over– so I’m presuming there are pretty well-drawn rules by this point.

  13. Federal courts should not have anything to say about such things. If you read the writings of the founders, it’s clear that what they fought for is dead and gone, as is the original meaning of the 14th amendment.

    1. Super clear.

      Sorry you hate your current country in favor of some idiosyncratic vision you have on behalf of a bunch of smart dudes from back in the day.

      1. Every time people ‘fix’ things they tend to get worse. Unless you’re referring to the Democrats penchant for Slavery of Blacks.

      2. I never said I hate this country. I said, in my opinion, matters such as this should be left to the States and not subject to federal jurisdiction. Capiche?

  14. Boys who run Track can appear shirt-less. Girls, not at all. We played skins vs. shirts in Gym. An interesting test in Girls Gym. Make 1/2 of Junior High Girls play shirt-less. Equality!!? Demand your right to see young women’s chests too! Make your stand now. Pro argument is still bull-shit. A 5 year old sporting body piercings shows a bizarre family dysfunction at home.

    1. Get an education. Start with standard English, focusing on capitalization and punctuation.

      1. Speaking of clingers, here you are!

  15. On a similar note, can a Parent make their child get a tattoo? Why?

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