iRecently, there have been a numerous amount of stories in the media and popular culture about transgendered individuals. Since the subject is becoming more understood in society, transgender characters are increasingly appearing in television shows such as “Orange Is The New Black.” Celebrities like Caitlyn Jenner, formerly known as Bruce Jenner, the Olympic athlete, have been publicizing their journey and transformation. As people are becoming more comfortable to come out with their self-identified gender identities, society and its institutions, including schools, need to be adequately prepared to comprehend the legal rights associated with the new concerns arising from this population.
Although the United States Supreme Court has yet to address the issue of transgendered students right to clothing choice in public schools, it is likely that lower courts will encounter this issue more frequently. In recent years, cases have arisen in which the end result was that of a settlement and some that never ended up in the courts because of the American Civil Liberties Union (“ACLU”) stepping into the case. This emerging area of the law is of crucial importance as it is an indication of what courts can expect to be confronted with as people are becoming more open with their gender-identities. There are few cases, and even less legal scholarship, discussing the right to clothing choice of transgendered youth in public schools.[i]
The legal principle that governs the rights of clothing choice for transgendered students is the First Amendment. The First Amendment’s language states that “Congress shall make no law . . . abridging the freedom of speech . . . .”[ii] What does this mean? Is the First Amendment limited to only protecting speech? What about other forms of expressions, are they protected, too? The answer is that free speech has been expanded to include other elements, such as expressions; however, it has not been expanded to include every self-expressive conduct.[iii] First Amendment theorist, Emerson, explains that there has been a terminological shift that makes it clear that freedom of expression encompasses some forms of communicative behavior that would not normally be classified as speech.[iv] To Emerson, the clarification between speech and action is between communicative and non-communicative speech.[v] According to Emerson, behaviors entitled to protection include wearing uniforms and armbands. It appears as if the First Amendment is not limited to speech, but also to other expressive conduct. In a pivotal and precedential First Amendment case, Tinker v. Des Moines Independent County School District, the Court held that freedom of expression is “closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.”[vi] Using the First Amendment as the legal backing, this paper will ultimately assert that public school policies and dress codes should reflect the legal rights of transgendered students to dress according to their self-identified gender identity, which is a form of protected speech.
This paper will proceed as follows: Part I will present a basic foundation on being transgendered and will discuss the terminology that will be crucial to understanding this paper. Part II will demonstrate why the transgender population is entitled to the protections of the Constitution. Part III will expand on the First Amendment by further explaining its history and application in the public school setting. Part IV will analyze prior court rulings relative to transgendered students in public schools and their First Amendment right to dress/self-express. Lastly, Part V will address situations in which the ACLU has intervened and will provide guidance to school administrators on how to foster an environment sensitive to the needs of transgendered students.
PART I: WHAT DOES IT MEAN TO BE TRANSGENDER?
So what does it mean to be transgender? It is critical that the differences between sex, sex category, and gender are distinguished in order to comprehend what being transgender truly means. To put it in simple terms, sex is biological.[vii] Sex is “a determination made through the application of socially agreed upon biological criteria for classifying persons as females or males.”[viii] In current society, sex is based on the reproductive organs one is born with.[ix] On the other hand, sex categorization is the application of the sex criteria, but in everyday life. Categorization is established and sustained by socially required identificatory displays that proclaim one’s membership in one or the other category.[x] Gender, then, is defined as “the activity of managing situated conduct in light of normative conceptions of attitudes and activities appropriate for one’s sex category.[xi] “Doing gender means creating differences between girls and boys and women and men, differences that are not natural, essential, or biological. Once the differences have been constructed, they are used to reinforce the ‘essentialness’ of gender.”[xii] North America is currently a very gendered society that continuously reinforces gender differences.
In the psychological realm and in society, gender is categorized. The term cisgender is defined as “people who are not transgender.”[xiii] Alternatively, being transgendered means one is confronting all these categorizations head on. It is important to note that there is no complete or perfect definition, as this term is frequently debated within the LGBTQ community.[xiv] Broadly, the definition of transgender includes individuals of any age or sex whose appearance, personal characteristics, or behaviors differ from stereotypical notions pertaining to how men and women are supposed to act.[xv] Within the transgender population, there are distinctions between full-time and part-time. A full-time transgender person will act and dress in accordance with his or her neurologically determined (i.e. the identity hardwired into the brain) gender identity, which does not correspond with his or her socially assigned gender role and anatomy.[xvi] A part-time transgender person is often referred to as a cross-dresser; these are people who do not fit into the male/female binary when they are dressing like the other sex.[xvii] Unlike full-time transgendered persons, a part-time transgender dresses up on an occasional basis as the opposite biological sex. Although part-time dress is sometimes considered a start in the transition process, typically, a part-time transgender is not identifying with another gender. Further, in this paper it will become apparent that the distinction between a full and part time transgender is an important factor in the First Amendment analysis.
FIGHT FOR THE RIGHT TO DRESS: WHY IS THE RIGHT TO DRESS IMPORTANT?
As a cisgender person, it may be difficult to understand the importance of clothing choice as deserving of First Amendment protection. However, when looking at it through the eyes of a transgendered person, it becomes clear that “transgender people who embrace their gender identity are immediately subjected to the judgment of a society wed to gender norms and the male-female binary.”[xviii] The caveat with younger individuals, depending on their age, is that they cannot legally consent to reassignment surgery or hormone therapy.[xix] Consequently, a transgender youth’s external appearance often becomes the primary expression of his or her gender identity.[xx]“For transgendered youth, sometimes the only option to express their gender identity is to wear clothes, makeup, or accessories; however, many traditional dress code policies found in most public schools threaten this expression.”[xxi] “Schools’ dress codes can be used to enforce gender norms and prescribe gender conformity, which essentially becomes a means by which transgender youths’ identities are suppressed and further marginalized.”[xxii] Further, any “effort to cope with their gender identity, in the meantime, is severely hindered by teachers, counselors, and administrators who are not normally able to understand or appreciate the emotional and physical difficulties transgender students experience.”[xxiii] Without guidance and support for transgendered youth as they struggle with their gender identity, many transgendered youth often experience depression and often attempt suicide.[xxiv] “One study showed that 41% of male-to-female transgender people attempt suicide and 20% of female-to-male transgender people attempt suicide.”[xxv] An outlet for gender expression is pivotal to transgendered youth, and that outlet is the clothing they choose to wear.
PART II: THE FIRST AMENDMENT AND TRANSGENDERED PERSONS
The First Amendment awards protection to the citizens of the United States from the government. The First Amendment is extended through the Fourteenth Amendment, which states that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[xxvi][xxvii]The Constitution specifically provides for persons that are natural or corporate.[xxviii] Common Law persons include individual human beings or combinations of them acting in concert.[xxix] Nowhere in any of the definitions is gender or identity included. The only requirement to be a natural person is to be a human being. The Equal Protection Clause requires the State to treat all persons similarly situated alike or, conversely, to avoid all classifications that are “arbitrary or irrational” and those that reflect “a bare ... desire to harm a politically unpopular group.”[xxx] This means that transgendered persons should be treated alike to other persons. More recently, the United States Supreme Court recognized that homosexuals were persons under the Constitution, showing that sexuality and gender does not make someone less of a person under the Constitution.[xxxi] In speaking about discrimination, the United States Supreme Court explained that an “individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”[xxxii] Identifying as a transgendered person does not make an individual less of a person than someone who is a cisgender. Transgendered individuals are people just like other human beings and they must be protected under the law as such.
PART III: THE FIRST AMENDMENT IN PUBLIC SCHOOLS
The First Amendment has been the core of several cases against public school boards throughout the years. The Fourteenth Amendment furthers the First Amendment to protect the citizens from “Boards of Education not excepted.”[xxxiii] Therefore, students, whether they are in or out of school, are entitled to First Amendment protections.[xxxiv] The United States Supreme Court has recognized that the unbridled free expression of speech is not permissible in every setting.[xxxv] The question then becomes not whether students have First Amendment protections, but what the limitations on those protections are?
The landmark case on First Amendment law in schools is Tinker v. Des Moines Independent County School District, where students decided to publicize their objections to the hostilities in Vietnam by wearing black armbands.[xxxvi]Tinker set forth the precedential case law that says, “[i]f the conduct by the student, in class, or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the right of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”[xxxvii] Also, the First Amendment does not protect speech when there is “reason to anticipate that it would substantially interfere with work of the school.”[xxxviii] In short, Tinker set forth the substantial disruption test, which allows for a weighing in favor of prohibiting the speech if it causes said material disruption. In the Tinker case, there was no indication that the work of the school or any class was being disrupted.[xxxix] There were also no threats or acts of violence on school premises.[xl] The Court reasoned, “it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[xli] The Court held that the First Amendment protected wearing the armbands, as it neither interrupted school activities nor sought to intrude in the school affairs or the lives of others.[xlii] Thus, the material substantial disruption exception set forth in Tinker will become essential to a court’s analysis on the First Amendment protections of transgendered student dress.
Additionally, cases on school dress code illustrate that the burden of proof is on the “person desiring to engage in assuredly expressive conduct to demonstrate that the First Amendment is applicable.”[xliii] In Blau v. Fort Thomas Public School District, the Court held that the First Amendment did not protect a student from school dress code restrictions where the student did not wish to convey any particular message, but wished only to wear clothes that she thought looked nice on her, and that made her feel good.[xliv] The First Amendment does not protect vague notions of expressions, such as the self-expression through any and all clothing that a girl may wish to wear on a given day.[xlv] This emphasizes that in order for clothing choices to come into more than self-expressive conduct when opposing a public school dress code, courts are looking specifically for the conveyance of a particular message in order to award First Amendment protections. This also reinforces the idea that not all forms of expressive conduct are protected.
PART IV: FIRST AMENDMENT ANALYSIS OF TRANSGENDERED STUDENT DRESS IN PUBLIC SCHOOLS
Although there are very few cases on the issue of the right to dress for transgendered youth in public schools and their First Amendment implications, the common judicial trends of analysis are as follows: 1) Is clothing a form of speech?, 2) Is clothing a form of protected speech?, 3) Is the school trying to suppress the speech?. 4) Is the suppression justified?, and 5) Does the Tinker exception apply?
1) IS CLOTHING A FORM OF SPEECH?
The first step in the analysis is determining whether clothing choice is a form of speech. In Jacobs v. Clark County School District, a student wore a shirt that suggested her religious beliefs and was consequently suspended as the outfit violated the school’s dress code.[xlvi] The Jacobs Court held that “student attire may indeed constitute speech . . . the choices that students make in dressing themselves can be and often are guided by much more nuanced and complex considerations than simple aesthetics.”[xlvii] Therefore, while this case does not specifically relate to transgendered students, the Court established that clothing choice could sometimes be considered expression of speech.
2) IS CLOTHING A FORM OF PROTECTED SPEECH?
Since clothing choice can sometimes be considered speech, the next inquiry by a court is whether that speech is protected. Symbolic speech or behavior is when an individual uses conduct, rather than words, to convey a message or idea.[xlviii] In Logan v. Gary Community School Corporation, a transgendered boy wore girls clothing and accessories to school throughout the year, and also wore a girl’s dress to prom.[xlix] During the year, Logan’s dress did not cause a substantial disruption and other students and teachers were supportive.[l]The principal communicated her opposition to Logan wearing a dress and advised her to wear a suit.[li] On prom night, Logan arrived in a dress. The principal would not let her enter the prom.[lii] Logan spent part of the night in the parking lot with students supporting her and then went home.[liii] Sometime after prom, officials from the school confirmed that Logan was excluded from prom pursuant to school board policy that said that clothing/accessories that advertise sexual orientation and sex are inappropriate.[liv] Although it was too early in the case to determine the First Amendment claim, the Court said the success of the party’s positions rested on whether Logan’s prom dress was her preferred form of personal self-expression, or if it was intended to express a viewpoint and send a message.[lv]
The Court in Doe v. Yunits did a similar analysis where the student suffered from gender identity disorder. The student in this case is biologically male, but identifies with the female gender.[lvi] The Court granted an injunction against the school, barring them from preventing the student “from wearing clothing or accessories that any other male or female student could wear to school without being disciplined.”[lvii] The school dress code explained that “clothing which could be disruptive or distractive to the educational process or which could affect the safety of students” would not be tolerated.[lviii] The Yunits Court found it important to the student’s health and wellbeing to dress according to her gender identity, as confirmed by her therapist.[lix] The Court held that it was not a personal preference, but a necessary symbol of her very identity. The Yunits Court ruled that protected speech must communicate the individual’s intended message.[lx]Yunits was important because the Court was able to put sex aside and look at the case through the student’s self-accepted gender.
Courts have also taken into account whether a student is a full-time or part-time transgender in their analysis of whether the clothing choice is intended to communicate a message. When the individual is only dressed in the other sex’s typical clothing part-time, courts have found it less likely to be symbolic of gender identity.[lxi] On the contrary, full-time transgendered students typically wear clothing to illustrate the message that they identify with a specific gender, which is more compelling, and thus, more of a reason for the dress to be considered as a protected form of expression.
3) IS THE SCHOOL TRYING TO SUPRESS PROTECTED SPEECH?
If the clothing choice is found to be protective speech, the court would next look to see if the school was directly trying to suppress the speech. In Yunits, the Court found that by prohibiting the student from wearing items of clothing that are traditionally labeled girls’ clothing, the school engaged in direct suppression of speech because biological females who wear items such as tight skirts to school are unlikely to be disciplined by school officials. In these types of cases, the school is usually prohibiting the student from expressing their self-identified gender identity by prohibiting them from dressing in the clothing normally worn by someone of that gender.
4) IS THE SUPRESSION JUSTIFIED?
Next, in order for the state to prohibit free speech, there has to be a state interest in prohibiting recognition of student gender identity, as well as a rational nexus between the asserted state interests and the regulations, policies, or practices that deny the gender identity of a transgender student with regard to dress codes.[lxii] The asserted state interest in good order and discipline in the school is likely to fail unless school authorities can demonstrate a substantial interference with the school, rather than a mere concern about controversy.[lxiii] Ironically, in most cases any mild disruption is typically not caused by the student’s attire, but rather by the school administrators restricting the student.[lxiv] In J.S. ex rel. v. Bethlehem Area Sch. Dist., the student created a website where he posted derogatory comments about teachers and principals at his school.[lxv] The Court noted that part of a school’s charge is to balance the exercise of rights that enrich learning with order, and a safe and productive school environment.[lxvi] However, a cautious approach that considers and balances both the constitutional rights of the student with the preservation of order and a proper educational environment must be adopted.[lxvii] When it comes to transgendered student dress, the courts are still faced with this balancing of rights, unless the Tinker exception prevails
5) DOES THE TINKER EXCEPTION APPLY?
Lastly, if the defendant is trying to suppress the protected speech, it is unconstitutional unless the Tinker exception applies. In Yunits, the Court found that because it did not interfere when biological females wore the attire, then it also did not interfere when the transgendered student wore the attire.[lxviii] Although this suppression of speech is permissible if the student’s speech materially and substantially interferes with the work of the school, this Court found that the school did not consider the student’s clothing distracting per se, but because the student was a biological male.[lxix] Keeping in mind that there is little case law on this subject, most cases illustrate that there is not a substantial disturbance. It is more so discomforting to the school administration, and possibly other students, who are not used to and do not want to tolerate those who are not cisgender. If the only problem is that others are uncomfortable, then the clothing would be allowed. If, of course, there are substantial disruptions, then it would be up to the fact-finder to determine whether there was a great disruption causing a First Amendment limitation.
PART V: GUIDANCE TO SCHOOL ADMINISTRATORS
With an ever-evolving society, schools are regularly faced with combatting new situations. This includes school boards coming across cases involving the clothing choices of transgendered youth. As such, they are struggling to find an answer on how to adequately handle these instances, especially with their existing dress code. It is imperative to address some of these cases. In 2013, a biologically male student was told she had to wear a tuxedo to prom. The ACLU stepped in and sent a letter expressing the First Amendment right to dress. The school responded allowing the student to wear any formal attire that conformed to the dress code, including a dress.[lxx] In April 2015, Mississippi School of the Arts reversed its decision and allowed a male transgender student to attend prom wearing a dress, following the ACLU stepping in by sending the school a letter urging that a policy requiring boys to wear traditionally male attire to school dances constituted gender discrimination, and violated First Amendment rights.[lxxi] In another situation, a biological male identifying as a female wore yoga pants to school.[lxxii] The principal said the pants were too revealing, and as a result, other students responded with stickers and postings on social media in support of the transgendered student.[lxxiii] According to the dress code, “attire that the administration considers to be a distraction to others’ learning will not be permitted. Students who dress inappropriately will be sent to the main office.”[lxxiv] In this case, the dress code was not applied equally.[lxxv]
Although these cases did not ensue in litigation, they heed great acknowledgment to the fact that transgender rights are arising more and more in public schools. For the most part, schools have responded adequately to the ACLU’s responses by allowing students to dress in a manner that aligns with their self-identified gender, so long as the clothing is permitted in the dress code. This is not the end, but only the beginning. Schools need to be equipped and ready to incorporate the legal rights of transgendered students. In order to do this, schools will need to be proactive and look at their policies today, instead of waiting for the ACLU to step in, or for a transgendered student to take them to court over their rights.
Here is what schools should consider doing since the core of the issue is not just dress, but also discrimination, prejudice, and overall discomfort. Schools should:
- Create and enforce anti-discrimination and anti-harassment policies, as well as other safe school policies.[lxxvi]
- Construct policies on how to report policy violations. Each school should designate a person or group of people to act as the conduit for reporting violations. There should be at least one male and one female staff member. Alternatively, for anonymity, a website could be created for confidential reporting.[lxxvii]
- Supply training to staff, students, faculty, and administrators about LGBTQ terminology, harassment, bullying, suicide, and LGBTQ student legal rights.[lxxviii]
- Encourage students to form LGBTQ support groups.[lxxix]
- Update their current dress code to be inclusive and gender-neutral in order to allow students to express their gender identities through clothing and accessories.[lxxx]
As an inclusive policy, students would be able to dress in clothing and accessories associated with their identified genders, as long as that clothing is allowed under the school’s gender-neutral dress code.[lxxxi] do not differentiate based on gender.[lxxxii] This approach minimizes the risk of liability under the First Amendment and other constitutional provisions, as well as laws prohibiting discrimination based on sex or gender identity.[lxxxiii] When people understand more, they are able to be more accepting and tolerating. Transgendered persons are a marginalized population due to the fact that they are visibly different upon first glance. It is important to foster a community for transgendered students at all schools in order to provide support, guidance, and acceptance. Additionally, schools that take the time to be proactive and put policies and procedures in place for transgendered students will be more adept to deal with these situations when they arise.
CONCLUSION
The psychology of transgendered persons, and how they fit into sex and gender categories is quite complex. Grasping the cultural pressure to fit into normative concepts, it should be apparent why the transgender community confronts such a battle with society. The First Amendment is embedded in the Constitution as a right to all, because of its strong importance to society. Specific to the transgender population, the right to dress in accordance with an individual’s self-identified gender is of the utmost importance. This strong importance is due to the lack of other means to express gender. In the limited cases decided, courts have realized that for full-time transgendered persons their clothing choices were a way to convey a message: I am not a boy, I am a girl. This expression was held protected under the First Amendment. Only when this expression was part-time, did not send a message, or the Tinker substantial disruption test applied has it been unprotected. Absent more than a mere discomfort, transgendered youth should be able to dress according to their self-identified genders under the First Amendment. Schools need to be proactive and prepare for the challenges that they are likely to face by creating policies that respect the transgender population and by changing their dress code to become inclusive and gender neutral.
Today’s modern society has brought a plethora of new technologies, advancements, and ideologies, all of which are very different from when the First Amendment was originally drafted. Because of these big changes, time and time again, society is forced to re-evaluate the Constitution to determine how it applies to current developments, and transgendered expression (i.e. dressing) in public schools is no exception. More recently in Obergefell v. Hodges, the Supreme Court made a landmark decision requiring states to permit same-sex marriages.[lxxxiv] In the decision, the United States Supreme Court, when talking about the plaintiffs said, “[t]hey ask for equal dignity in the eyes of the law. The Constitution grants them that right.”[lxxxv]Obergefell changed the institution of marriage to include same-sex couples and expanded the Constitution’s interpretation of the Fourteenth Amendment. Similarly, it is time that the Constitution’s Amendments be looked at in light of the current society in relation to transgendered persons. Just like the institution of marriage changed, so should the First Amendment to recognize the rights of transgendered persons.
It is time for public school dress codes to shed their exclusive roots and become inclusive to transgendered persons. It is time for society to recognize the transgendered population, and that their legal rights need to be guaranteed under the Constitution. Society is moving towards a genderless approach. A first of its kind, Sweden has put in place a genderless pre-school with genderless toys and books and where the teachers do not use pronouns.[lxxxvi] Large retailer, Target, announced its efforts to eliminate gender signs, for example, girls’ toys and removing references to gender, such as the color pink or blue.[lxxxvii] It is no longer for him or for her as just this year, American fashion house, Calvin Klein, announced the release of a genderless perfume.[lxxxviii] These are just a few examples. Yesterday, it was same-sex marriage; and today it is transgendered rights. Society needs to be ready and schools need to make changes to their policies to reflect the ever-evolving society. As philosopher Heraclitus said, “the only thing that is constant is change.”
[i] Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, their Identities, and their Rights, 13 SCHOLAR 149 (2010).
[ii] U.S. Const. amend. I.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 505-06 (1969).
[vii] Candace West & Don H. Zimmerman, Gender & Society: Doing Gender, Sage Publications, https://campus.fsu.edu/bbcswebdav/institution/academic/social_sciences/sociology/Reading%20Lists/Social%20Psych%20Prelim%20Readings/IV.%20Structures%20and%20Inequalities/1987%20West%20Zimmerman%20-%20Doing%20Gender.pdf (1987).
[viii] Id.
[ix] A. Garrison, Unbinding binaries: Using clothing to unlock the door of gender identity, Worn Fashion Journal, 13, 20-24 (2012).
[x] Id.
[xi] Id.
[xii] Id.
[xiii] J. Serano, Whipping girl: A transsexual woman on sexism and the scapegoating of femininity. Emeryville, CA: Seal. (2007).
[xiv] Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, their Identities, and their Rights, 13 SCHOLAR 149 (2010).
[xv] Holly V. Franson, The Rise of the Transgender Child: Overcoming Societal Stigma, Institutional Discrimination, and Individual Bias to Enact and Enforce Nondiscriminatory Dress Code Policies, 84 U. Colo. L. Rev. 497 (2013).
[xvi] Id.
[xvii] Id.
[xviii] Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, their Identities, and their Rights, 13 SCHOLAR 149 (2010)
[xix] Id.
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Id.
[xxiv] Id.
[xxv] Id.
[xxvi] U.S. Const. amend XIV.
[xxvii] Person, Black’s Law Dictionary (9th ed. 2009).
[xxviii] Constitution Society: Summary of Constitutional Rights, Powers, and Duties, Personhood, http://www.constitution.org/powright.htm (2015).
[xxix] Id.
[xxx] City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446–47 (1985).
[xxxi] Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
[xxxii] Glenn v. Brumby, 663 F.3d 1313,1319 (U.S. Ct. App. 11th Cir. 2011);Smith v. City of Salem, 378 F.3d 566 (6th Cir.2004);Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.2005);Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir.1997).
[xxxiii] Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 506 (1969).
[xxxiv] Id. at 511.
[xxxv] J.S. ex rel. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 650 (2002).
[xxxvi] Id. at 504.
[xxxvii] Id. at 513.
[xxxviii] Id. at 509.
[xxxix] Id. at 508.
[xl] Id.
[xli] Id. at 509.
[xlii] Id. at 514.
[xliii] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
[xliv] Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381 (6th Cir. 2005).
[xlv] Id.
[xlvi] Jacobs v. Clark Cnty. Sch. Dist., 373 F.supp.2d 1162, 423 (D.Nv. 2005).
[xlvii] Id.
[xlviii] James R. Dyer, Texas v. Johnson: Symbolic Speech and Flag Desecration Under the First Amendment, 15 New Eng. L. Rev. 895 (1991).
[xlix] Logan v. Gary Comm. Sch. Corp., 2008 WL 4411518 at 1 (2008).
[l] Id.
[li] Id.
[lii] Id. at 2.
[liii] Id.
[liv] Id.
[lv] Id. at 5 quoting Texas v. Johnson, 491 U.S. 397, 404 (1989).
[lvi] Doe v. Yunits, 15 Mass.L.Rptr. 278 at 1 (2001).
[lvii] Id.
[lviii] Id.
[lix] Dr. Jillian T. Weiss, Protecting Transgender Students: Application of Title IX to Gender Identity of Expression and the Constitutional Right to Gender Autonomy, 28 Wis. J.L. Gender & Soc’y 331 (2013).
[lx] Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, their Identities, and their Rights, 13 SCHOLAR 149 (2010).
[lxi] Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381 (6th Cir. 2005).
[lxii] Dr. Jillian T. Weiss, Protecting Transgender Students: Application of Title IX to Gender Identity of Expression and the Constitutional Right to Gender Autonomy, 28 Wis. J.L. Gender & Soc’y 331 (2013).
[lxiii] Id.
[lxiv] Logan v. Gary Comm. Sch. Corp., 2008 WL 4411518 at 1 (2008).
[lxv] J.S. ex rel. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 851 (2002).
[lxvi] Id. at 651.
[lxvii] Id. at 652.
[lxviii] Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, their Identities, and their Rights, 13 SCHOLAR 149 (2010).
[lxix] Holly V. Franson, The Rise of the Transgender Child: Overcoming Societal Stigma, Institutional Discrimination, and Individual Bias to Enact and Enforce Nondiscriminatory Dress Code Policies, 84 U. Colo. L. Rev. 497 (2013).
[lxx] Jennifer Radcliffe, Transgender Student Wins Bid to Wear Dress to Prom, http://www.chron.com/news/houston-texas/houston/article/Transgender-Spring-student-wins-bid-to-wear-dress-4409653.php (2013).
[lxxi] Kate Royals, Transgender Student Allowed to Wear Dress to Prom, http://www.clarionledger.com/story/news/2015/04/14/transgender-student-prom-dress/25764001/ (2015).
[lxxii] Jacqueline Palochko, Emmaus Students Rally for Transgender Classmate in Yoga Pants, http://www.mcall.com/news/local/eastpenn/mc-emmaus-high-transgender-student-dress-code-20150402-story.html (2015).
[lxxiii] Id.
[lxxiv] Id.
[lxxv] Id.
[lxxvi] Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, their Identities, and their Rights, 13 SCHOLAR 149 (2010).
[lxxvii] Id.
[lxxviii] Id.
[lxxix] Id.
[lxxx] Id.
[lxxxi] Id.
[lxxxii] Id.
[lxxxiii] Model School District Policy on Transgender and Gender Non-Conforming Students, National Center for Transgender Equality, http://www.transequality.org/issues/resources/model-school-district-policy-transgender-and-gender-non-conforming-students (2013).
[lxxxiv] Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
[lxxxv] Id.
[lxxxvi] Cordelia Hebblethewaite, Sweden’s ‘gender neutral’ pre-school, http://www.bbc.com/news/world-europe-14038419 (2011).
[lxxxvii] What’s in Store? Moving Away from Gender-based Signs, https://corporate.target.com/article/2015/08/gender-based-signs-corporate (2015).
[lxxxviii] Hemul, Calvin Klein takes the gender debate a step forward with its new genderless fragrance CK2, http://indiatoday.intoday.in/story/calvin-klein-ck2-latest-fragrance-genderless-gender-free-gender-neutral-ck-one-unisex/1/531889.html (2015).
