What’s So Threatening About a Boy in a Prom Dress?
By Cole Thaler, National Transgender Rights Attorney
Published 03/27/08
Last December, Lambda Legal filed a federal lawsuit in Indiana on behalf of Kevin "KK" Logan, a gay transgender high school student who was barred from entering his prom because he arrived in a dress. Principal Diane Rouse literally stretched her arms across the door to bar KK from entering. Now the Gary Community School Corporation has moved to dismiss KK's lawsuit. According to GCSC's memorandum of law, KK's expression of his feminine gender identity is not constitutionally protected expression. The GCSC administrators claim that they excluded KK not because of his sex but because "he wore a pink ankle length dress to the prom." They claim to have been motivated by a "concern for all of the students who attended the prom." But the other students at prom had known for a long time that KK was feminine; they understood the message he sent through his gender expression over the prior two school years, and they accepted him for who he was. Rather, the school administrators singled KK out for discriminatory treatment, and now insist that KK's unequivocal feminine self-expression is unworthy of First Amendment protection.
GCSC's argument that KK's pink dress is not a constitutionally protected expression reminds me of the first transgender student I ever met — another plaintiff, who, like KK, advanced First Amendment and sex discrimination claims to protect her right to express her gender identity.
In 2000, I was a law student intern at Lambda Legal's sister organization in Boston, Gay and Lesbian Advocates and Defenders. One of GLAD's clients at that time was a transgender middle schooler in Brockton, Massachusetts, who wanted to attend school wearing the feminine clothing that matched her gender identity. The school principal would summon the 14-year-old plaintiff (identified in court papers only as "Pat Doe") to his office each morning. He would scrutinize her appearance and decide whether she appeared sufficiently masculine to remain in school that day. If he thought she looked too feminine, the principal would send her home. GLAD filed a lawsuit on her behalf, arguing that the school's interference with Pat's education violated her constitutional right to free expression and the Massachusetts ban on sex discrimination in education. The court ultimately ruled in Pat's favor, vindicating her right to express her feminine self — her "quintessence," as the court aptly noted.
Like the Brockton school administrators unsuccessfully claimed eight years ago, the Gary Community School Corporation now argues that KK's feminine attire sent no clear message to his classmates. The argument that gender nonconforming expression is without cognizable or protected meaning hearkens back to older case law denying transgender people the ability to express their gender identity. For example, a Pennsylvania court held in 1996 that allowing a transgender woman to change her name from a masculine to a feminine one "would be to sanction the perpetration of a deception on the public." In re McIntyre (1996). Most of these cases have become relics for the history books, as courts and other government actors have grown to understand the importance of supporting and facilitating gender transition.
However, transgender youth still must grapple with fear and condemnation of their gender nonconforming expression. In GLSEN's 2005 National School Climate Survey, more than 40 percent of respondents reported feeling unsafe because of how they express their gender, and over a quarter had experienced physical harassment on the basis of their gender expression. Transgender youth in out-of-home care are also vulnerable to mistreatment. One of Lambda Legal's clients, for example, was told by a juvenile justice facility in New York that she could not cross her legs at the knee because that mannerism was viewed as too feminine.
The First Amendment right of students to express themselves on controversial topics has long been established. In 1969, the United States Supreme Court ruled that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines (1969). Although schools may regulate student speech that disrupts school operations, the Supreme Court recently reaffirmed that a simple desire to avoid "the discomfort and unpleasantness that always accompany an unpopular viewpoint" does not justify the suppression of student speech. Morse v. Frederick (2007). KK Logan's attire spoke volumes about his sense of kinship with, and similarity to, other prom-goers in dresses, but his identity and perspective resulted in his exclusion.
The fear of gender nonconformity is inextricably linked to the need for more education and awareness about transgender lives. When GLAD went to court with Pat Doe for an order allowing Pat to attend school in feminine clothing, one journalist was so uncertain about what a transgender student's expression of a female gender identity might look like that she mistook me — short hair, sweater vest, necktie and all — as the 14-year-old plaintiff with a female gender identity. She had read descriptions of Pat Doe, but looked right through her.
The classmates and teachers of transgender youth undoubtedly recognize masculinity and femininity when they see it around them, in class and at the prom. And, against the backdrop of societal stereotypes that condition us to expect certain ways of expressing gender, the message sent by transgender youth rings loud and clear. In fact, the need of transgender youth to express their gender identity is so visceral that, for some, it even precedes speech: the parent of one transgender girl told a journalist that, when the child was 15 months old, she would unsnap her onesies to make them look like dresses. The profound significance of this expression in a society that would rather stretch its arms across the door raises the stakes for transgender youth.
All people have gender identities, but gender nonconformity has a particular expressive weight that is vivid and undeniable. It was this potent expression — the vibrant pink prom dress on a male student's body — that led Principal Diane Rouse to bar KK from the once-in-a-lifetime event. Other students with feminine gender identities attended the prom in dresses. Only one student in a dress was blocked from entering: KK Logan.
GCSC's argument — that KK's gender nonconforming expression, which stands in stark relief to mainstream expectations about gender, sends no clear or protected message — rings false, both viscerally and legally. KK's feminine gender expression challenged the social norm that says that boys who wear clothing customarily worn by girls are not worthy to attend a school function. KK's expression spoke volumes about the place of transgender youth in our society: While society may overlook or wish to silence any outward expression of gender that differs from a person's assigned sex, KK's attire on prom night — when outfits are usually gender-specific — poignantly expressed that gender norms do not account for all, and so they ought not be enforced by schools against all.
As the Supreme Court and numerous other courts have noted, disagreement with, or disapproval of, the content of a message "does not legitimize use of [the state's] power to compel the speaker to alter the message by including one more acceptable to others." Lambda Legal's work on KK's behalf seeks judicial recognition of the fact that the clarity and content of his gender nonconforming expression at school falls squarely within his First Amendment protections.
