Does Title IX apply to a dress code?

I’ve seen some statements on social media that the 4th Circuit has held that a charter school in North Carolina has a dress code that violates Title IX.  That’s not right.  That’s not what the 4th  Circuit said.  But the court did hold that Title IX applies to a dress code, and that’s big enough news right there. 

There is a K-8 charter school in North Carolina that requires girls to wear skirts.  No, really—they do.  Yes, the boys at the School must conform to a uniform policy as well, and it’s equally conservative. But the girls claim that this skirt requirement in particular imposes a burden on them that the boys do not have to deal with.  They are more inhibited on the playground, they have to take care as to how they sit.  It can be cold on bare legs in North Carolina. 

The founder of the school, who still serves on the board, claimed that the dress code promoted chivalry. He testified that “chivalry” meant “a code of conduct where women….are regarded as a fragile vessel that men are supposed to take care of and honor.” 

I intend to poll the Women of Walsh Gallegos and see how they feel about that.  Fragile vessels, indeed.  Fiddle-dee-dee, Miss Scarlet!

But that gives you an idea of the culture the charter school was promoting.  It appealed to many parents, but three of them, representing girls in kindergarten, 4th and 8th grades, sued the school, alleging that the dress code, besides being a few centuries behind the times, was illegal. 

The 4th Circuit held that Title IX applies to dress codes.  This was not obvious and so this is an important ruling.  The Title IX regulations that were adopted in 1975 said that Title IX prohibits discrimination in the application of “any rules of appearance.” But in 1982 that regulation was rescinded. At that time the regs noted that Congress did not say anything specific about dress and grooming codes, and besides, the Department of Education had bigger fish to fry, more important issues to deal with. 

The 4th Circuit disregarded all that history and focused on the actual language of the law.  It noted that the statute prohibits discrimination based on sex in educational institutions that receive federal funding but it also includes several exceptions:

*Title IX does not apply to religious organizations if it would conflict with their religious tenets;

*It does not apply to military schools;

*It does not apply to historically single-sex public universities;

*It does not apply to social organizations like fraternities and sororities, YMCA, YWCA, Boy Scouts and Girl Scouts;

*It does not apply to Boys State, Girls State or similar conferences and programs;

*It does not apply to father-son or mother-daughter activities;

*It does not apply to scholarships won in beauty pageants, as long as factors other than beauty are taken into account.

That’s seven exceptions.  The 4th Circuit reasoned that if Congress wanted to make an exception for dress codes, it could have added an 8th exception. So the dress code is subject to Title IX and must not discriminate on the basis of sex. However, the court did not take the next step and apply Title IX to the charter’s school’s dress code. Instead, it remanded the case to the lower court for a determination of that issue.

The court did offer some guidance.  First, the inquiry should focus on how the dress code affects individuals—not groups.  In other words, the fact that the dress code restricts both boys and girls is not, by itself, enough to pass muster.  Was an individual treated worse due to the dress code, and was that treatment attributable to that person’s sex?

Second, the harm to the individual must be objective, not just a subjective feeling.  Girls who don’t like the dress code, or feel unfairly treated will have to produce evidence of how they are actually harmed by the application of the dress code.  No doubt the evidence on this issue will focus on the obvious fact that movement while wearing a skirt is restricted as opposed to movement when wearing pants.

Will this decision lead to more aggressive efforts to persuade Texas school districts to alter some longstanding practices?  Youbetcha.  It’s Peltier v. Charter Day School, decided by the 4th  Circuit Court of Appeals on August 9, 2021.  We found it at 2021 WL 3483288.


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Tomorrow: Some thoughts about those IEP Supplements….