Leggings too Provocative? More on School Dress Codes

Back to school wearing leggings?  Perhaps not.

Highland High School of Salt Lake City, Utah posted several images on facebook and twitter to guide students on how to appropriately wear leggings to school —


As reported, the administration now requires that students cover up between the waist and thigh with another layer of clothing when wearing leggings. Though an outright ban has yet to happen, if the school deems a student’s leggings to be too tight, the student is given sweatpants and a T-Shirt saying “I Love My Administrator.”

Unlike past fashion trends of the youth involving too much skin showing (e.g., mini-skirts, spaghetti straps, etc.), leggings do not directly expose one’s body. However, as Assistant Principal Nelson told reporters, “Sometimes, they can be so tight that there’s really nothing left to the imagination.”

The actual dress code standard requires that clothing be of “modest design” and prohibits “provocative” dress.

Reactions have varied, but several students question the tightness of male athletic uniforms and have also commented that several teachers wear the tightly fitting pants. Others have noted that the school does not ban discrimination against LGBTQ students.

Seemingly unfazed by these points, the administration continues to focus on the trend of young women, finding the form fitting pants just too provocative for an educational environment.


[Images via]

Borgata Babes: NJ Judge Finds No Discrimination Against Female Casino Workers

Applying state law,  Superior Court of New Jersey Judge Nelson Johnson rejected a sex discrimination claim by employees of the Atlantic City Borgata Hotel-Casino in an opinion in Schiavo v. Marina District Development Company, LLC [d/b/a Borgata]. Granting summary judgment for the employer, Judge Johnson applied a sort of “caveat employee” rationale, essentially reasoning that the women knew the costume, weight, and appearance requirements when they “auditioned” for the job.


“Borgata Babes” as advertised on the casino website

Judge Johnson found that Borgata sought to position itself as a Las Vegas Style hotel-casino, unique in the Atlantic City market, and as an “integral part” of its mission, developed its “Costumed Beverage Servers,” known as “Borgata Babes.”  The women – – – and occasional man – – – are part of the casino’s branding and are advertised as “part fashion model, part beverage server.”  The costume, Judge Johnson tells us, was designed by Zac Posen, a “highly acclaimed fashion designer,” a judge on the television show “Project Runway,” and generally considered a “high end designer” known for “stream-lined and very tailored” couture.   In order to ensure that the “costumed beverage servers”  continued to look good in their attire, Borgata has “Personal Appearance Standards,”(PSA)  including weight restrictions.   At the time of the lawsuit, the PSA mandated that costumed beverage server could not weigh more than 7% of her weight at hiring.

The plaintiffs contended that the PSA was sex discrimination and sex stereotyping and also that PSA was enforced in a discriminatory manner against women but not men.  As to the first claim, Judge Johnson said that the women agreed to be a “babe” – – – a term that “oozes sexual objectification,” and is “at best undignified and at worst degrading.”  He admits that his finding of voluntariness would be disputed by some, including “respected legal scholars” who view American society as “patriarchal,” a term he places in quotes.   Nevertheless, he concludes that because the women “embraced” the label “babe” when they went to work for Borgata, they cannot “shed” it now.

boardwalk-empire-the-birth-high-times-and_1As to discriminatory enforcement, he bemoans the lack of evidence.  He would have liked to have been “presented with a photograph of at least one overweight male” costumed beverage server, especially given the popularity of cameras on phones and the existence of casino surveillance cameras.

Interestingly, Judge Johnson includes a discussion of casino gambling and Atlantic City supporting his finding that the employer’s practices are lawful.  He does not cite any sources, but astute observers might recognize him as the author of a book Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City, published in 2010, and subsequently popularized as a HBO television series.

Of course, this is not the first time that a court has been presented with a sex stereotyping claim by a female casino worker.  In the notorious case of Jespersen v. Harrah’s Operating Company, Inc. , the en banc Ninth Circuit rejected a challenge to a new make-up and grooming standard applied to female bartenders.  Jespersen and similar sex stereotyping based on dress, is discussed in Chapter 3 of Dressing Constitutionally.

Again, while these cases do not directly involve constitutional issues, but statutory ones, they do demonstrate how far – – – or not far – – – courts are willing to go to protect women’s rights of dress and appearance against the requirements of companies who wish to “brand” them.

Iowa Supreme Court: It’s Not Sex Discrimination When Male Employer Finds Female Employee’s Attire Provocative – – – and Fires Her

The Iowa Supreme Court issued its opinion in Nelson v. Knight ruling for the employer, James Knight, a dentist, and against his employee of more than a decade, dental assistant Melissa Nelson.  Brought under the Iowa statutes governing sex discrimination, the case is not a constitutional one, even as it draws upon constitutional notions of sex and gender equality.

As the court explained the situation:

Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. On another occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight. After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would get it coming and going.


Dressing in the Dental Office, circa 1942

For the Iowa Supreme Court, Nelson did not have a claim for sex discrimination. 

It concluded it was not her sex and implicitly not the way she dressed that was the reason for her termination; instead it was her specific relationship with her employer that caused his wife to be jealous and thus insist on Nelson’s termination.  A special concurring opinion took a somewhat more nuanced view, arguing that while she may have had a claim for sex discrimination, the facts she alleged did not support it: even if  “Nelson was fired because Dr. Knight was physically attracted to her, the attraction and resulting threat to the Knights’ marriage surfaced during and resulted from the personal relationship between Nelson and Dr. Knight” and not from any  “gender-based discriminatory animus.”

Thus the seven Justices of the Iowa Supreme Court – – – coincidentally all men – – – unanimously agreed that Knight’s termination of Nelson was perfectly legal.

[image via]

“Hippie Chic” and Hair

Jim_Morrison2The Boston Museum of Fine Arts has a new exhibit by Curator Lauren Whitley “Hippie Chic.”  The exhibit profiles the street styles and the couture of 1960s and 1970s alternative culture that produced an “eclectic, highly individual look, mixing vintage and ethnic clothing with fashions inspired by contemporary psychedelic Pop art, nature, fantasy, and ethnographic art.”   Take a look at the video and slide show here.

In an interview with National Geographic, Whitley observes that the fashion was anti-fashion, even as it was picked up by couture.  She notes that part of the hippie style was not only clothes, but also hair: “Long hair was defining.  If you had long hair, you were called hippie, even if you weren’t.”

Hair and hippies were not only fashion statements, they were also constitutional issues.  The play HAIR went to the United States Supreme Court in Southeastern Promotions, Ltd. v. Conrad; the Court decided in 1975 that the directors of the Chattanooga Memorial Auditorium, a municipal theater in Tennessee, unconstitutionally rejected an application to stage the play with its brief nude scene. 

However, the United States Supreme Court refused to grant certiorari in at least nine male hair length cases involving students, often over a dissent by Justice William O. Douglas who opined that these cases produced a conflict in the circuits that was deep, irreconcilable, and recurrent, with the federal court “decisions in disarray.  The judges had great difficulty discerning whether hair length regulations for boys – – – but not girls – – – constituted a sex equality issue just as they had great difficulty understanding whether or not hair length was sufficiently expressive to meet the threshold for a First Amendment claim.   A fuller discussion appears in chapter 3 of Dressing Constitutionally.

[image, recognizable 1960s icon,  via]

Cross-Dressing As Evidence of Prostitution or of Art

Specific laws criminalizing so-called cross-dressing – – – wearing clothes not appropriate for one’s sex/gender – – – are now relatively rare.  Even in the 1970s, courts opined that the very notion of cross-dressing was losing some of its coherency.  Meanwhile, other courts were declaring that such laws were unconstitutional as applied to persons they described as “true transexuals.”

Instead, more indirect policing of gender appropriate clothes occurs.  For example, a Memphis television station reports that three men were arrested for “prostitution” seemingly based on evidence that they were wearing “provocative female attire.”  While the report is somewhat unclear as to whether or not there was other proof of solicitation for commercial sex, the mention of female attire – – – and provocative at that – – – by law enforcement seems to be offered as sufficiently explanatory.


“Javi and Gabi” by Jon Uriarte

Meanwhile, a photography project by Jon Uriarte has been garnering attention; it consists of full-length portraits of men wearing the clothes of their female partners, “taken in the space shared by the couple.”  It’s interesting because it conveys the degree of gender segregation – – – or not – – – in clothing.

And it is also interesting to contemplate which if any of Uriate’s subjects could be charged with prostitution given his attire. 




Wendy Davis and Her Sneakers

For those wondering how to distinguish between times in which what a female politician wears is irrelevant – – – as in our previous post discussing former Australian PM Julia Gillard- – – and when it might be relevant, Sally Kohn has a particularly good post over at Daily Beast.


do these shoes convey a message?


Kohn argues, in effect, that Davis’s shoes have become symbolic speech, while most of the time women’s clothes are not speech:

In the sense that Wendy Davis is a hero, her shoes are a symbol—a talisman of feminism and political voice and literally standing up for what’s right. Her shoes are legitimately part of the story of filibustering for 11 hours, especially because they stood out. But pointing out what women leaders are wearing when it has absolutely nothing to do with the story is exactly the opposite—it undercuts the leadership of women and quashes their voice.

While Texas legislator Wendy Davis may not have worn the shoes for their symbolism (merely for their anticipated comfort), they have certainly attained a meaning.  If there any doubts, take a look at the “reviews” section for the shoes on Amazon.com.

Julia Gillard, Australia’s Now-Former Prime Minister, and Dressing Professionally

Julia Gillard, Australia’s Prime Minister for the last three years and first woman to hold the position, has been ousted by her own party.  During Gillard’s tenure, her gender became a focus, including a spotlight on how she dressed and looked.


Julia Gillard as Prime Minister in 2011. Should she really have been wearing white at this citizenship event on Australia Day? And look at that collar! Is the skirt too tight? And less than long sleeves? – – – good thing she is not in Tennessee.

[image of Gillard on Australia Day 2011 via]

This fixation on the attire and appearance of female leaders, including Gillard, was expertly discussed last week by  the redoutable and brilliant Anne Summers:

Although male politicians might occasionally have some aspect of their clothes remarked upon—Paul Keating [former Austrailan PM]  was criticised for wearing Italian, rather than Australian-made, suits—they never, repeat never, have to endure the banality of the endless sartorial commentary that all women in politics, but especially the leaders, have to deal with. Women leaders need to adopt strategies to try to neutralise this. Hillary Clinton, when she was running for president in 2008 and later as US secretary of state, adopted the pants suit as a virtual uniform. She varied the colour and added accessories such as scarves or jewellery but essentially she, like men in public life, wore the same outfit every day. German Chancellor Angela Merkel has done the same. She has such an array of different coloured jackets, which she wears over black pants, that some wag even created a pictorial representation of a Pantone-style colour chart of her wearing them all and labelled it ‘Fifty Shades of Angela Merkel’. Gillard evidently struggled for a time to vanquish this issue. She has admitted how hard it was for her to face the daily criticism of what she was wearing. This was especially cruel and relentless in her first year in the job when her jackets, especially, were singled out as ill-fitting and badly designed. In April 2013 Gillard commented that she had since worked to make sure her clothes were not an issue. She now has a wardrobe of well-tailored outfits, mostly suits, in solid colours. Wearing them, she exudes the confidence that comes from knowing her ‘look’ is going to emphasise her overall purpose rather than undermine it.

Yet however hard Gillard and other women leaders work to defuse their appearance as a subject of commentary, they cannot escape it altogether.

Summers goes on to discuss the options exercised by other women leaders, including adopting “traditional female dress.”    Summers is also worth reading on the consequences of Gillard’s departure.

And if you have never seen Gillard’s “misogyny speech” in Australia Parliament, it’s definitely worth watching.  She wore blue.


Ocean City Planning Its Own Boardwalk Dress Code

645px-20110927-0832aWith the widespread news that the town of Wildwood, New Jersey has adopted a dress code for its boardwalk, despite its questionable constitutionality, at least one politician in Ocean City, Maryland reportedly thinks that town should do the same.

The so-called “decency law” would criminalize the way people dressed.  The law is reportedly prompted by the desire to prevent crimes and violence, but the logical link between the way people dress and the way people rob others is weak.   If a man is shirtless, does that mean he is a mugger?  And if he is, does wearing a shirt mean he will not steal?

Here’s more on the (unconstitutionality) of government attempts to make men wear shirts or not “sag” their pants displaying their underwear and there’s more in the book, Dressing Constitutionally.

[image via] 

Idaho GOP Elicits Outrage with Tutu Comment

On Tuesday, Idaho republicans passed a resolution asking the state legislature to effectively override local city ordinances that ban discrimination against LGBTQ persons in employment, housing, and elsewhere.

In support of the proposal, prominent GOP member, Cornel Rasor made national headlines when he said,

“I’d hire a gay guy if I thought he was a good worker. But if he comes into work in a tutu … he’s not producing what I want in my office.”

Outrage aside, Mr. Rasor’s comments clearly show a conflation of sexual orientation and gender identity – that certain clothing signifies a particular sexual orientation, and conversely, that one’s sexual orientation mandates gendered dress choices. Dress, given its public visibility, is often a locus for such a conflation.  However, one wonders what Mr. Rasor might do if a female worker came to the office attired in a tutu.


[image via]