A recent court decision argues that a school can’t enforce sex-specific clothing guidelines for students
Title IX requires educational institutions to provide equal opportunities for both males and females. Last week, a federal appeals court twisted the wording of the landmark anti-discrimination law to prohibit schools from ever differentiating between boys and girls.
The case arises from a dress code adopted by Charter Day School, a public charter school in Leland, N.C. The elementary school uses a classical curriculum focused on Western civilization. The school is tuition-free and open to all children in North Carolina. Although no child is compelled to attend Charter Day School, those who do must adhere to its dress code, which requires students to wear a unisex polo shirt and closed-toe shoes. The dress code also prohibits “excessive or radical haircuts and colors” and forbids boys from wearing jewelry. Female students are required to wear a skirt, jumper, or “skort”; boys must wear shorts or pants.
Clothing signals many things, including our sex and our views on sex roles, social class, and individuality. A school’s decision to adopt a uniform or dress code is often intended to convey specific pedagogical messages. Some people may find the Charter Day School dress code too restrictive or old-fashioned. Some may agree with the majority opinion that the dress code reinforces stereotypes. But that doesn’t mean it violates federal law. In fact, the Department of Education long ago determined that the “development and enforcement of appearance codes is an issue for local determination” not covered by Title IX. That is especially true where, as here, no student is obliged to attend Charter Day School, and parents who object can enroll their children elsewhere.
Nevertheless, with the help of the ACLU and the National Women’s Law Center, Bonnie Peltier, the mother of a female student, took Charter Day School to court, claiming that the dress code violated Title IX and the 14th Amendment, which guarantees equal protection of the law.
Title IX reads:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
The statute says nothing about gender stereotypes or dress codes. It prohibits exclusion, denial of benefits, and discrimination.
Charter Day School does not exclude members of either sex from any of its educational programming, nor does it deny either sex the benefits received by the other. All students receive equal educational opportunities. But a majority of the full U.S. Court of Appeals for the Fourth Circuit agreed with Peltier that Title IX’s prohibition on sex discrimination governs school rules regarding appearance and that the dress code at Charter Day School denied female students the equal protection of the law.
The premise of the ruling — that any differential treatment of the sexes is, by definition, discriminatory and, thus, a violation of both Title IX and the U.S. Constitution — is a radical departure from established sex-discrimination jurisprudence and has implications far beyond school dress codes and “skorts.”
Anti-discrimination law (both statutory and constitutional) has long treated sex distinctions differently than racial ones because there are real and important differences between males and females that do not exist between races. When it comes to race, separate is inherently unequal. Not so with sex. No federal law prohibits separate women’s sports teams, sororities, locker rooms, or prisons. Nor should it. As much as gender ideologues might wish that it were otherwise, males and females simply are not the same.
It is for this reason that sex distinctions are not, in and of themselves, illegal. Rather, sex-based classifications are unlawful when they disadvantage one sex over the other. The Peltier majority ignored this fundamental principle, essentially holding that all sex-based classifications are per se discriminatory.
Unfortunately, the Fourth Circuit’s ruling will likely be used to eliminate single-sex programs and spaces altogether. And it will no doubt be used to justify forthcoming Biden-administration regulations that use Title IX to prohibit schools from acknowledging or responding to sex differences.
This week, Title IX turns 50. It is time to restore the statute to its original purpose — providing equal educational opportunities for both sexes — and time to stop making a federal case out of skorts.