A Stitch in Haste

One of the interesting questions during the ENDA-T debate was the topic of "gender stereotype discrimination," especially as it applied to the transgendered. In other words, is there a functional — or legal — distinction between discriminating against someone for "being a gay male" and discriminating against someone for "not acting male"?

Exhibit A:

K.K. Logan attended West Side High during his junior and senior year and expressed a deeply rooted femininity in his appearance and demeanor. Both classmates and teachers at the school supported him in his daily attendance dressed in clothes typically associated with girls his age.

However, on May 19, 2006, Principal Diane Rouse stretched her arms across the door of the Senior Prom, blocking Logan's entrance. His classmates and friends rallied to his defense to no avail — even though a female student was allowed entrance dressed in a tuxedo.

There are several different approaches one could take here. Clothing is considered expressive conduct for First Amendment purposes. The school, by allowing Logan to cross-dress during the school year, had arguably waived its authority to prevent him from doing so at the prom. To allow girls to cross-dress but not boys is a clear Equal Protection red flag.

Unfortunately, it gets worse:

Principal Rouse has stood by a school policy that deems inappropriate any "clothing / accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements."

Sexual orientation is, to school administrators, on a par with "drugs, alcohol, tobacco and profanity"? Even to the extent that those other manifestations of supposedly impermissible naughtiness might be proscribable in the context of clothing (and that's a big "might" under the First Amendment*), any meaningful application of rational basis would come up short trying to lump in "sexual orientation" with those other categories.

School proms would not have been covered by ENDA, with or without the "T." But the playbook is the same: A crafty bigot can all too easily frame unequal treatment in a manner that circumvents mere homosexuality: "He wasn't fired for being gay, he was fired for dressing weird..." Etc.

The case is Logan vs. Gary Community School Corporation.

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*Or is it? See Morse v. Frederick and its progeny.

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In an unrelated recent post, I noted:

Being wronged, suing and winning is not the same as never having been wronged in the first place. Most people would choose not to suffer such an indignity rather than suffer the indignity and get a payment in exchange[.]

How exactly do you put a dollar value on being denied access to your prom?