Transgender Student Fights to Wear Tux in Year Book Photo — and Wins

November 20, 2013 by Kara Wallis

Earlier this month, an 18 year-old transgender student fought and won a battle to wear a tuxedo in his yearbook photo, despite his school’s initial reaction that the photograph would not conform with “community standards.”

As reported, the South Texas school refused to allow high school senior Jeydon Loredo to wear his tuxedo in his senior photograph because “they were a conservative school” and as a consequence, his “photograph would be included only if he wore feminine attire, such as a drape or blouse.” As discussed in Dressing Constitutionally, yearbook photos have frequently been a locus for regulating students’ gender expressions, but the administration’s reasons often do not justify their actions because of First Amendment and Equal Protection Clause protections.

Joining Jeydon and his family, the Southern Poverty Law Center wrote the school district officials a demand letter, describing how the refusal to include the photograph “violates the student’s freedom of expression, which is protected by the First Amendment. It also violates the Equal Protection Clause of the 14th Amendment, which protects the student from discrimination, as well as Title IX, which bars discrimination on the basis of sex by any education program receiving federal money. Refusing to publish the photograph would even violate the school district’s own anti-discrimination policies.” The Center then threatened a suit against the District if they did not make a decision to include the photograph of Jeydon in the tuxedo within eight days.

Shortly after receiving the Center’s demand letter, the District came to a resolution that it would allow the photo, saying the decision was “in the best interest of the student and the school and the community.”

But as the Center said in a recent Press Release, the District allowing the photograph is much larger than just the best interest of Jeydon and the community — it sends the message “that transgender students should be recognized as important members of their communities rather than ostracized and subjected to discrimination.”

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Art or Obscenity? Love! Valour! Compassion! and Nudity in Grand Rapids

November 18, 2013 by Brett Dolin

A production of Terrence McNally’s play Love! Valour! Compassion! at the Actors’ Theatre in Grand Rapids, Michigan, has drawn criticism for its onstage nudity, raising questions about public financing of artistic pursuits. Actors’ Theatre, although an independent organization, reportedly received $19,000 in funding from the public Grand Rapids Community College and the group performs at GRCC’s Spectrum Theatre. The play, according to a favorable local review, “follows a group of eight homosexual males” who discuss AIDS, infidelity, and “other ‘real people’ situations.” At least one character is nude for “a good portion of the play.”

The problem, according to some, is that GRCC is endorsing nudity as entertainment, with taxpayer money. Concerned citizen Joan Ridderbos, who reportedly did not see the play but did hear about it from friends at church, made the complaint to a meeting of the board of trustees. Trustee Richard Ryskamp agreed, having previously accused GRCC funding of being used to “mock Jesus Christ” and “popularize homosexual conduct.” One suspects the upset is about something more than nudity on stage.

The Grand Rapids controversy and its articulation in concern about nude entertainment highlights another controversy discussed in Dressing Constitutionally. In 1975, the Supreme Court decided Southeastern Promotions Ltd. v. Conrad, a case about the musical Hair, which also features onstage nudity. As discussed in the book, it is clear that a production of Love! Valour! Compassion! is protected by the First Amendment. The GRCC’s budget, however, is fair game for the political process, and concerned citizens may attempt to censor the stage through a denial of funding, recalling efforts in the 1980s and 1990s to defund the National Endowment for the Arts and NEA v. Finley.

Trustee Ryskamp, meanwhile, noting that artistic abilities are not “the issue,” has declined an invitation to see the Actors’ Theatre’s next production: Venus in Fur.

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What’s the Problem with Skyler’s Bag? A School Dress Code and a Boy’s “Purse”

November 17, 2013 by Brett Dolin

School officials have suspended an eighth grader at Anderson County Junior/Senior High School after he refused to remove his Vera Bradley “purse.” Skyler Davis, 13, was reportedly called to the Assistant Principal’s office and told to either remove the bag or face suspension. Davis refused, and the school sent him home.

As we have seen in other situations, timing and shifting rationales are suspicious factors in this dress code enforcement. According to Davis’s outraged mother, Leslie Willis, he had been wearing the bag since August without issue. Meanwhile, Anderson County School District Superintendent Don Blome explained the rule: “all students, whether male or female, are prevented from having bags, purses, satchels and backpacks in the core classrooms like English and math.” No gender discrimination here! All bags are banned equally. Davis’s mother, meanwhile, insists that the student handbook contains no mention of bags or purses, noting: “Skyler has been going to school since August with that same Very Bradley bag on, hasn’t taken it off. What is the problem?”

Perhaps the problem had nothing to do with the bag. With his mother’s support, Skyler returned to school, wearing the bag, and was again suspended. This time, school administrators reportedly told him he had never been suspended for wearing the bag, but in fact for “foul language.” Willis says she was told that “the suspension wouldn’t be lifted until Skyler stops wearing the purse.”

A few constitutional issues are raised here: gender discrimination (girls can wear purses; boys cannot) and freedom of expression (Davis claims to express himself through his bag). The school might counter by showing a rule of equal application to female and male students and, as explained in Dressing Constitutionally, “[attire] bearing words or symbols is much more likely to meet the expressive threshold necessary to invoke First Amendment protections.” Davis, however, might note how enforcement of a dress code often serves as a proxy for enforcement of expressive and gender norms. And a hopeful sign: the support of his mother and many others, including Vera Bradley. Perhaps sensing opportunity, the company has offered Davis words of support — and products.

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More About Confederate Flag Attire: Kanye West Edition

November 17, 2013 by Ruthann Robson

The controversy surrounding celebrity rapper Kanye West’s adoption of the Confederate flag for his new tour is expertly analyzed by Elon James White in his article in his article in The Root and there has been a call to boycott the tour gear.

But what if a student wanted to wear Kanye West attire to school, perhaps accepting West’s articulation about the symbol’s meaning?

Kanye West notwithstanding, the school can most likely constitutionally prohibit the student from wearing Confederate flag gear. Here’s my recent column for the London School of Economics blog, and we’ve previously covered the Confederate flag issue here and here.

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Prison Denies Rastafarian Man Dreadlocks

November 16, 2013 by Kara Wallis

As reported, on a weekly basis, Georgia correctional officers force Bryan Kawand Sims to cut his hair and shave his face, an act that Sims alleges violates his Rastafarian faith. So last month, when the prison denied Sims a formal exemption to the prison’s hair prohibition, Sims filed federal suit against the Baldwin State Prison, alleging the policy violates federal law and Sims’s 1st and 14th Amendment rights.

As stated in his pro se complaint, before filing suit, Sims met with the prison chaplain to provide evidence to the prison regarding the sincerity and tenets of his beliefs. Shortly after their last meeting, however, Sims was “locked in a cage” where he refused to shave his chin area because it would “violate his religious beliefs.” In the cage, an officer threatened to deprive Sims of access to the law library and then eventually “muscled down” Sims in order to shave Sims’ “hair and face … by force.”

Sims is now forced to shave or cut his hair on a weekly basis in accordance with the prison’s grooming policy. As stated in the Baldwin State Prison’s Offender Orientation Handbook, the prison prohibits “the growing or wearing of the hair on the head long enough to extend onto the collar of an ordinary shirt, cover any part of the ears or eye brows, or to be longer than three (3) inches on top.” The prison also bans incarcerated persons from having “goatees, beards, and similar facial adornments.”

Sims has alleged multiple claims in his handwritten complaint. First, by denying Sims’s religious exemption, the Prison “refuse[d] to recognize the Rastafarian religious practice of the sacred dreadlocks … and ordered [Sims’s] hair be clipped and chin be shaved, immediately denying defendant to his [federal statutory] rights and his protection under the 1st and 14th Amendments.” Sims also alleges multiple claims for the verbal and physical harassment he has suffered over his refusal to cut his hair, including explicit and blatant disregard for his religious preferences and for the actual or threatened physical force officers use to shave, or force Sims to shave, his head and face.

For relief, Sims wants the prison to recognize his Rastafarian faith, and “specifically provide a religious exemption profile permitting [him] sacred dreadlocks to grow 3-feet and prohibit the cutting of specifically the chin area.” He has also requested compensation for court fees and mental anguish from the constant harassment of the correctional officers.

As discussed in Dressing Constitutionally, courts have found that in order to avoid violating a person’s constitutional rights, a prison must to make accommodations for religious reasons, but the considerations of those rights will be balanced against any safety and other concerns the prison may put forth, making Sims’s chances for relief uncertain as he begins the second year of his life sentence.

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Dressing Like a Prostitute Does Not Include Skinny Jeans and a Pea Coat

November 11, 2013 by Ruthann Robson

New York Criminal Court Judge Felicia Mennin has dismissed a criminal complaint charging Loitering for the Purpose of Engaging in a Prostitution Offense (NY Penal Code § 240.37[2]) for facial insufficiency in her opinion in People of State of New York v. McGinnis based in part on the failure of the officer’s description of the defendant’s attire to be meaningful.

The criminal complaint alleged, that the officer observed “defendant wearing BLACK PEA COAT, SKINNY JEANS AND PLATFORM SHOES, which were revealing in that OUTLINE OF DEFENDANT’S LEGS [sic].”

Here’s Judge Mennin on the sufficiency of the officer’s statements:

The informant’s emphasis on the defendant’s clothing as a tell-tale sign that she was marketing herself commercially is astonishing. The defendant is alleged to have been wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes. This information was again supplied in the supporting deposition in response to a request to ”fill in the blank.“ Any current issue of a fashion magazine would display plenty of women similarly dressed. However, the choice of such outfit hardly demonstrates the wearer’s proclivity to engage in prostitution. Indeed, the complaint’s characterization of the jeans as ”revealing“ because they ”outlined the defendant’s legs“ seems more to be expected in the dress code of a 1950’s high school than a criminal court pleading.

That there is some type of dress that might be more probative of a willingness to engage in prostitution is also discussed by Judge Mennin, with reference to the cases cited by the State:

The defendant’s clothing in this case stands in stark contrast to the clothing relied upon as circumstantial proof of loitering for purposes of prostitution in the cases cited by the People. For instance, in Byrd, the defendant’s clothing exposed her buttocks. In Jones, the defendant was allegedly dressed in a skirt and a black bra with no other covering on her upper body. In Farra S., the defendant was wearing a shirt, the cut of which revealed the sides of her breasts. In Koss, one defendant was dressed in a black leopard two-piece bathing suit and high heels. In such instances, reliance upon attire as a factor appears more reasoned.

As a footnote to this passage, Judge Mennin addressed the implicit claim that a peacoat might be more provocative during the winter:

Granted, this incident occurred in the middle of winter. However, a ”pea coat“ is still standard issue to members of the U.S. Navy and models of such coats are made and sold routinely to men, women and children, and blue jeans, skin-tight or baggy, are practically an American icon. Accordingly, it is difficult to imagine what, if any, significance at all the defendant’s clothing might have in this case, either individually, or taken collectively with other meaningful circumstances, as any indicia of a link to prostitution. It would appear that the officer was just tempted to ”fill in“ this blank of the supporting deposition because it was there.

Judge Mennin’s opinion, which has generated some media coverage, highlights the perfunctory nature of most criminal complaints as well as the tenuous link between attire and sex work. While her opinion does not hold that attire can never be circumstantial evidence of loitering for the purpose of prostitution, she certainly concludes that the attire must approach indecent exposure.

Profiling Clothes: Stop and Frisk and What You’re Wearing

November 9, 2013 by Ruthann Robson

There is continuing controversy regarding law enforcement’s implementation of stop-and-frisk in racially discriminatory ways. Regarding NYC’s highly publicized practices, a federal district judge’s decision to enjoin the current practices was not only stayed by the Second Circuit, but the judge herself removed from the case, a removal which is being challenged. Meanwhile, with the election of a new mayor in New York City, the litigation may be moot.

But whatever happens, there are certainly conversations about the possibilities of racially neutral criteria to support the “suspicion” constitutionally required by Terry v. Ohio under for stop and frisk. Many seemingly neutral criteria are in fact racial (and gendered) criteria. This includes clothes.

As I argue over at the Cambridge University Press blog 1584,

suspect attire mixes with race, gender, and age into a combustible cocktail targeting young men of color. The most explosive element is the racial one, for focusing on people based upon their race violates our basic understandings of constitutional equality. Current constitutional doctrine of equal protection, however, generally allows a racially disproportionate impact if there is no intent to be racially discriminatory. Enter clothes as convenient camouflage. Or, as one court phrased it, “although the prosecutor may have a bias ‘against people who sag,’” that does not mean the prosecutor’s exclusion of the juror was “based on race.”

Because, let’s be honest,

it is not every single person in a hoodie, in saggy pants, or in an university sweatshirt who merits suspect status. Indeed, the hooded sweatshirt has been around since the 1930s, was arguably popularized by the Rocky movies beginning in 1976 in which a boxer played by white actor Sylvester Stallone wears a hooded sweatshirt, and has been adopted and adapted by skaters, grunge artists, Facebook billionaires, and hip-hop culture. Saggy pants are often argued to have their source in the no-belt prison environment, but as white singer, model, and now actor “Marky” Mark Wahlberg demonstrated in the early 1990s with the Calvin Klein ads, fashionable underwear was meant to be seen, even while wearing pants. Today, it’s rare that underwear for men does not boast at least a waistband that is more than suitable for exposure. And as for clothes with university or pro-team logos, a visit to most colleges or to an NFL football game quickly demonstrates the popularity of these lucrative lines of apparel.

Let’s not allow attire to be a seemingly neutral rationale for masking other stereotypes. After all, as Dressing Constitutionally shows again and again, what we’re wearing is rarely, if ever, neutral.

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Confederate Flag Attire and School Dress Codes, Revisited

November 9, 2013 by Brett Dolin

The Supreme Court has, without comment, declined to review the Fourth Circuit’s ruling in Hardwick v. Heyward. We previously discussed the case, where then-high school student Candice Hardwick repeatedly violated her high school’s dress code by wearing various Confederate flag t-shirts. The Fourth Circuit applied the Tinker substantial disruption standard, looking at evidence of racial tension in the school and past incidents involving displays of the flag (including on South Carolina’s state capitol grounds), concluding that “school officials could predict that the Confederate flag would cause a disruption.”

Hardwick appealed the Fourth Circuit’s March ruling. As reported, her attorney Kirk D. Lyons of the Southern Legal Resource Center (SLRC) had this to say: “The school and the courts will not respect your children’s inalienable rights to proclaim and be proud of their Southern Heritage [sic], and in all areas of traditional culture it will only get worse!” The SLRC, while proclaiming to defend the “legal and civil rights of all Americans,” is especially concerned for “America’s most persecuted minority: Confederate Southern Americans.”

Bemoaning the “fall” of Tinker, SLRC makes note of some other shirts banned in Hardwick’s high school: “t-shirts declaring ‘I AM BLACK,’ images of ‘controversial figures’ such as Malcolm X and Bob Marley, as well as displays declaring pride in differing sexual orientations.” Despite the odious source (and the dubious claim of concern for everyone’s rights), one is reminded that the First Amendment permits a wide range of speech, and the legal debate around what messages and images are allowed in public schools is worth having. The Tinker standard and the clash of school discipline and free expression are discussed in the Dressing Disruptively chapter of Dressing Constitutionally.

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Supreme Court Asked to Fashion a Standard for Clothes

November 4, 2013 by Ruthann Robson

The United States Supreme Court today heard oral argument in Sandifer v. United States Steel Corporation centered on the meaning of “changing clothes” in section 203(o) of the Fair Labor Standards Act. As we discussed when the Court granted certiorari, the Seventh Circuit’s opinion by Judge Richard Posner found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes, because

not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings.

He included an image in the opinion (at right) and stated

Almost any English speaker would say that the model in our photo is wearing work clothes.

And indeed, Justice Ginsburg, during the oral argument at the Supreme Court did just that, but the discussion continued:

JUSTICE GINSBURG: But we’re dealing with here, from the picture, that looks like clothes to me.

MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don’t know what -

JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.

MR. SCHNAPPER: If you saw an airbag jacket, you would probably call it clothes unless you are an equestrian. It looks like a jacket. If you saw a compression torsion — a torso compression bandage in a photograph, you would call it clothes, because you don’t have all the relevant information.

JUSTICE ALITO: Why is it that the jacket and the pants in that picture are not clothes?

MR. SCHNAPPER: In our view — well, let me — part of it — first of all, they are designed for a protective function, to protect you from catching fire.

In addition to the ruminations on the meaning of clothes, perhaps leading to a definitional rule, there were attempts to understand why it mattered in this interpretation of the statute. The statute excludes from “hours worked”

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Thus an employee would need to be paid for putting on “gear.”

But if the Court can’t tell by simply looking, then what? As Justice Kagan noted toward the end of the argument, the distinction between clothes and gear “seems the quintessential question of statutory interpretation to which we would normally defer to the agency,” but in this case, the agency hasn’t issued a regulation. Justice Scalia offered his own explanation for the administrative failure to address the matter with a rule: “Too complicated is why.”

Thus, while Judge Posner’s opinion for the Seventh Circuit did raise some constitutional considerations about agency and executive power regarding differing meanings driven by politics, the constitutional question implicit in the Supreme Court arguments involve the separation of powers and the role of the Court in statutory interpretation.

So it is up to the Court to “fashion a standard,” as Eric Schnapper, representing Clifton Sandifer, phrased it during oral argument.

Prison Prohibiting Natural Hair for Religious Ceremony

November 2, 2013 by Kara Wallis

Unlike prison policies justifying removal of fake hair, the Fifth Circuit Court of Appeals has questioned a Texas prison’s prohibition on natural hair to be used in a religious ceremony.

As recently reported, a Texas prison denied William Chance’s request to use two small locks of his deceased parents hair in a Native American ritual known as “Keeping of Souls.” After Chance’s parents passed away, he made the request for the locks in order to “honor them properly” as prescribed by his faith. Housed in a special unit designed for Native American religious believers, Chance is among a population of approximately “85 prisoners who participate in Native American religious activities about twice a month.” The ceremony would involve “4-inch locks of [his parents’] hair about as thick as pencil lead.”

But the Texas Department of Criminal Justice (TDCJ) denied Chance’s request, saying that he could only possess items available for purchase through an approved vendor or the commissary. Interestingly, unlike the desired locks for the ceremony, Chance was able to secure a medicine bag with horsehair through these “proper” channels.

In response to the denial, the Texas Civil Rights Project took up Chance’s case, arguing that the prohibition “violates the federal Religious Land Use and Institutionalized Persons Act, which bars discrimination or unduly burdensome restrictions on individuals and religious organizations.”

Reviewing the case last month, the Fifth Circuit Court of Appeals decided the lower court erred when it found, on summary judgement, that the prohibition does not violate federal law. Favoring Chance’s argument, the Court said that “a small lock of hair is no more capable of being soaked in drugs than the letters in a prisoner’s mail,” and the hair could be inspected and tested. The Court also noted that “TDCJ permits Native American prisoners to possess such objects as a bone or a tooth, which are apparently not available for purchase from traditional vendors.” So, why then the ban on hair? Subsequently, the Court remanded the case for a lower court to properly decide whether the prohibition of the locks is “the least restrictive means of furthering TDCJ’s compelling interests.” The trial date is set for January.

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