A Mississippi high school graduate has voluntarily dismissed her lawsuit against the Harrison County School District for denying her the right to wear a dress and heels to graduation, even though the transgender student wore female clothing to her Coast school for four years.
In a case that garnered national media attention, U.S. District Judge Taylor McNeel ruled the school district could require the student, identified as L.B. in her lawsuit, to wear the black dress pants and shoes specified for boys in the Harrison Central High School graduation dress code.
McNeel issued a one-page order in the case denying L.B.’s request to wear her dress and high heels to graduation.
In the courtroom, he spent more than an hour explaining in detail how he applied the law to come up with his decision. The Sun Herald has obtained a transcript of McNeel’s remarks about the decision.
MS transgender student’s distress ‘genuine,’ judge says
L.B.’s attorneys, from the American Civil Liberties Union, maintained the School District’s policy on graduation dress violated L.B.’s legal and constitutional rights to equal protection, and her constitutional right to freedom of expression under the First Amendment.
McNeel said that he found L.B.’s testimony in the case “genuine.” He was careful throughout his remarks to avoid the gendered pronouns “he” or “she” when referring to L.B.
McNeel also acknowledged L.B.’s depression and anxiety over being denied the right to wear the dress and heels that she had picked out months earlier.
“It’s certainly a very big deal to L.B., that L.B. be able to go to a graduation ceremony and walk across the stage wearing the specific shoes that L.B. bought back in March and wearing the specific dress that L.B. bought back in March,” he said. “No question that that is a huge and massive deal to L.B. and all of L.B.’s family members and friends.”
But he said that enforcing the graduation dress code would not represent an “irreparable injury” to L.B., one of the legal tests for granting the extraordinary relief requested. L.B. could still choose to attend graduation, he said, and even wear long hair, makeup, a necklace and bracelets and long nails.
While L.B. felt it was important to express her femininity in a dress and heels, McNeel said she also would still be able to express her gender identity in the other ways he mentioned.
A different judge might disagree with him down the line, he said, and grant L.B. monetary damages.
“Those are things that I don’t know,” McNeel said. “But I do know that at the very least, this is an unclear area of the law.”
School dress code enforces two genders
McNeel also found the dress code did not violate equal protection afforded under the constitution and Title IX, an education law that prohibits discrimination based on sex.
He said dress codes can be gender-based as long as the burden to comply is comparable for both sexes.
He said there were no cases in the U.S. Supreme Court or in the U.S. Fifth Circuit Court of Appeals, which covers Mississippi, that address dress codes for transgender individuals. The absence of such cases, he said, could be because “transgender litigation in this country is just at its novel stages.”
The district’s dress code requires that boys wear buttoned-down shirts, dress pants, dress shoes and a tie.
“The fact that there are different rules for each sex does not amount to sex discrimination,” McNeel said.
He said the school district offered reasons for its dress code that are unrelated to students being allowed to express themselves.
Namely, the district maintained graduation is a solemn occasion where students should be dressed in their “Sunday best” so they will look good and reflect the standards of the community. The judge found the school district had an important objective in establishing the dress code and that it was designed to meet that goal.
Dress codes unfairly target LGBTQ+ students, data shows
McNeel’s decision to let the dress code stand in L.B.’s case coincides with nationwide data showing LGBTQ+ students and girls are unfairly targeted by dress codes.
A national report released by the Government Accountability Office says nearly every public school in the U.S. has a dress code. Here’s what the agency found:
About 93% of dress codes in the U.S. include language that allows the rules to be open for interpretation by a school.
About 15% of school dress codes have rules for clothing, hairstyles and accessories based on sex. None of the schools with sex-specific dress codes have protections for transgender or non-binary students.
Dress codes commonly use words like “revealing” or ‘immodest” when describing clothing worn by women and girls, which could also target LGBTQIA students.
Schools in the South are more likely to enforce strict dress codes than any other part of the U.S.
The Sun Herald reviewed Harrison Central High’s dress code policies for the school year and graduation. Neither dress code has protections for trans students. They also don’t say that the school district enforces dress codes according to sex assigned at birth.
L.B. has been allowed to dress in girl’s clothing her entire high school career, she said. The student figured when she signed the graduation dress code policy she’d be following the girl’s dress code. The school district said they enforce dress code based on the gender on a student’s birth certificate.