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Fashioning Children: Gender Restrictive Dress
Codes as an Entry Point for the Tans School to
Prison Pipeline
Deanna J. Glickman
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263
FASHIONING CHILDREN: GENDER
RESTRICTIVE DRESS CODES AS AN
ENTRY POINT FOR THE TRANS*
SCHOOL TO PRISON PIPELINE
DEANNA J. GLICKMAN
✝
I. Introduction .......................................................................................... 264!
II. Gender Norms and Dress Codes: A Tautology .................................... 266!
A.! Brief History of Dress Codes .................................................. 266!
B.! Current Rationales for Dress Codes ........................................ 269!
1.! Gang Prevention and Violence Reduction ......................... 269!
2.! Disciplined Learning Environment .................................... 270!
3.! Professionalism .................................................................. 271!
C.! How Gender Norms Operate Through Dress Codes ............... 272!
III.!!The Genderization of Dress Codes and the Trans* School to
Prison Pipeline ................................................................................ 274!
A.! The School to Prison Pipeline: An Overview .......................... 275!
B.! A Trans* Specific School to Prison Pipeline: Dress Codes
as an Entry Point ...................................................................... 276!
1.! Achievement: Academic Success or Failure ..................... 277!
a.! Gender restrictive dress codes bring negative
attention to the gender expression of trans*
students leading to lowered academic performance .... 277!
b.! Low Grades, Drop Out Rates, and Future Risk of
Incarceration ................................................................ 278!
2.! Discipline: A Precursor to the Criminal Justice System .... 279!
a.! Gender restrictive dress codes increase the amount
of administrative discipline trans* students are
subjected to .................................................................. 279!
✝ Deanna J. Glickman is a graduate of American University, Washington College of
Law. She is currently an Assistant Public Defender in Robeson County, North
Carolina and a Gideon’s Promise Fellow. The author would like to thank Ezra Rosser
and Brenda V. Smith for their guidance in academic scholarship and all of those
working in solidarity to end incarceration.
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264 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 24:2
b.! School Discipline as a Fast Track to Incarceration ..... 280!
3.! Safety: Harassment or Incarceration, Between the
Anvil and the Hammer ....................................................... 282!
a.! Gender restrictive dress codes create an unsafe
atmosphere for trans* students who face both
discipline and harassment ........................................... 282!
b.! Lack of Safety: An Amalgamation of Pathways to
Incarceration ................................................................ 283!
IV. Conclusion .......................................................................................... 284!
I. I
NTRODUCTION
Dress codes are a point of controversy within many school districts,
raising questions of classism, racism, and conformity. When debated in the
media, the constitutionality and desirability of dress codes typically focus
on their effect on the student body in general, or on large classes of
students like those too poor to afford the cost of a mandated uniform
requirement in a dress code.
1
Dress codes are constructed to reflect the
type of adults the children are to be molded into, a conservative norm
which values a narrow definition of success. Girls are to become ladies and
boys are to become gentlemen, without regard for what type of adult the
child wants to become. For students unable or unwilling to conform to
these norms, dress codes are more than a mild annoyance. Dress codes
become a controlling force that students must either conform to or face
repercussions that can last a lifetime. For trans*
2
students, that conformity
may come at the cost of their gender identity, a cost which can cause
negative reverberations throughout their life, including lowered academic
performance, higher dropout rates, and increased disciplinary action.
3
Essentially, dress codes serve as an entry point to the school to prison
pipeline for trans* students.
4
1. See generally Todd A. DeMitchell et al., Dress Codes in Public Schools:
Principals, Policies, and Precepts, 29
J.L. & EDUC. 31, 31-32 (2000).
2. Because this article is about those who violate gender norms, I have chosen
trans* as an umbrella term in an effort to be as inclusive as possible.
3. See Emily A. Greytak et al., HARSH REALITIES: THE EXPERIENCES OF
TRANSGENDER YOUTH IN OUR NATION’S SCHOOLS 25-28 (2009),
https://www.genderspectrum.org/images/stories/Resources/GLSN.Harsh_Realities_rep
ort.pdf; see also Jaime M. Grant et al.,
INJUSTICE AT EVERY TURN: A REPORT OF THE
NATIONAL TRANSGENDER DISCRIMINATION SURVEY 33 (2011),
http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.
4. The School To Prison Pipeline: And the Pathways for LGBT Youth,
GSANETWORK http://www.gsanetwork.org/files/resources/STPPdiagram.pdf (last visited
April 12, 2015) [hereinafter Pipeline] (visual network of school to prison pipeline with
2
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Although a small percentage of the population, the visibility of trans*
students has increased significantly in the past few years. Moving beyond
an invisible minority, trans* students are challenging the gender norms that
are an ingrained part of the American public education system. Trans*
students’ very existence calls into question the binary application of gender
expectations through dress codes because they break the binary and smash
gender expectations. As society becomes more aware of trans* people,
there are inevitable questions about terminology. Terms like transgender
can be read to include only those who at birth were identified with one of
the binary genders and seek to have a medical transition to the other binary
gender.
5
However, this does not encompass every person who has a non-
cisgendered identity.
6
Sex and gender can be complex concepts to unpack,
even without disagreements on definitions. This article does not endeavor
to give definitive definitions. When used herein, sex refers to a person’s
biological organs. Gender refers to the combination of gender identity and
expression. In general, gender identity refers to a person’s internal
perception of their gender, and gender expression is the external display of
their gender.
7
A person’s gender identity may not always correspond with
their gender expression, often due to fear of the repercussions of expressing
gender identity that is viewed as deviant.
8
There are a line of historic cases that challenge the legality of gendered
application of dress codes.
9
However, these cases reflect the confrontation
of two generations’ differing notions of gender norms, rather than a
challenge to the gendered nature of dress codes themselves.
10
In the recent
particular pathways for LGBT youth).
5. This article does recognize that people may use the term transgender in ways
other than defined here, but that is one of the reasons for using the trans* umbrella.
6. Cis-gendered is a term for a person whose gender identity and expression align
with their biological sex assigned at birth.
7. Sam Killermann, Comprehensive List of LGBTQ+ Term Definitions, IT’S
PRONOUNCED METROSEXUAL, http://itspronouncedmetrosexual.com/2013/01/a-
comprehensive-list-of-lgbtq-term-definitions/ (last visited March 18, 2015).
8. See Greytak et al., supra note 3 at 30.
9. See, e.g., Karr v. Schmidt, 460 F.2d 609, 609 (5th Cir. 1972) (hair length);
Griffin v. Tatum, 425 F.2d 201, 201 (5th Cir. 1970) (hair style); Lambert v. Marushi,
322 F. Supp. 326, 326 (S.D.W.V. 1971) (hair length); Livingston v. Swanquist, 314 F.
Supp. 1, 1 (N.D. Ill. 1970) (hair length).
10. For example, in Karr, a young man wanted to grow his hair past the acceptable
grooming standards for men, but not women, in the school’s dress code not because of
Karr’s gender expression, but because he wanted to identify with the ‘hippie’
movement. Karr, 460 F.2d at 728; see also Gael Graham, Flaunting the Freak Flag:
Karr v. Schmidt and the Great Hair Debate in American High Schools, 1965-1975,
91.2 J.
OF AM. HISTORY 522, 522-25 (2004) (noting that the school’s arguments relied
heavily on gender roles, including a lack of ‘manliness’ in having long hair).
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years, trans* students and their allies have challenged the gendered
enforcement of dress codes in schools across the country, both through
complaints to individual schools and school boards and legal challenges via
the court system.
11
Many of these lawsuits were successful, relying on
novel uses of already-established jurisprudence governing sex and gender
discrimination.
12
However, because the ability for trans* students to
challenge discriminatory application of dress codes does not explore the
relationship between dress codes and future criminalization they will not be
analyzed in this article.
Part II of this article will explore the relationship between gender norms
and dress codes, focusing on schools’ rationales for mandating dress codes
and how gender norms are enforced through enforcement of those dress
codes.
13
Part III explains how dress codes create a negative environment
and allow for specific targeting of trans* students.
14
Additionally, Part III
will explain the relationship between dress codes and the school to prison
pipeline for trans* students, finding that both purposefully harsh
application of dress codes and disproportionate but unintentional
application of gendered dress codes result in similar negative outcomes for
trans* students, including disproportionally high rates of poverty and
incarceration.
15
Finally, Part V will conclude that gendered dress codes
create an entry point for trans* students in the school to prison pipeline by
punishing trans* students for their gender identity and expression.
16
II. G
ENDER NORMS AND DRESS CODES: A TAUTOLOGY
“Skirt and pants stand juxtaposed as the Western world’s symbolic
Great Divide.”
17
A. Brief History of Dress Codes
Institutional dress codes, both the formal policies of government and the
11. See, e.g., Doe v. Yunits, No. 001060A, 2000 WL 33162199, at *3-4 (Mass.
Super. Ct.), aff’d sub nom, Doe v. Brockton Sch. Comm., No. 2000-J-638 (Mass. App.
2000).
12. See generally Zenobia V. Harris, Break the Dress Code Protecting the
Identities of Transgender Students, Their Identities, and Their Rights, 13 T
HE
SCHOLAR: ST. MARY’S L. REV. ON MINORITY ISSUES 149, 163-64 (2010).
13. See infra Part II.
14. See infra Part III.
15. See infra Part IV.
16. See infra Part IV.
17. SUSAN BROWNMILLER, FEMININITY 82 (1984).
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informal and unspoken social expectations, have existed for millennia.
18
American public schools as we know them came into existence in the late
19th and early 20th centuries and along with them came gendered dress
codes that reflected the gendered separation of society at large.
19
At that
time, the purpose of compulsory education was focused on preparing the
two genders for the duties expected of them in their respective spheres.
20
The 1960s saw the first major challenges to dress codes as the social
upheaval of the civil rights and anti-war movements permeated the school
gates.
21
Despite the growing protections for students’ civil rights, dress
codes were still highly gendered, often not allowing girls and young
women the option of wearing pants.
22
The relaxation of dress codes that
students of the 1970s and 1980s enjoyed was not long lived, as the
conservative shift of the late 1980s brought dress codes and uniform
policies back to schools.
23
The resurgence of uniforms and restrictive dress codes was the result of
a confluence of factors, including a rise in violence and gang activity, and
creative attempts to improve the academic performance of students in
schools that were performing below the national average.
24
These reforms
18. For example, sumptuary laws have existed for thousands of years enforcing
gender and class norms through the legal structure. See, e.g., Paul Skidmore, Book
Reviews, 56.3 C
AMBRIDGE L.J. 631-32 (1997) (reviewing Alan Hunt, GOVERNANCE OF
THE CONSUMING PASSIONS: A HISTORY OF SUMPTUARY LAW (1996)) (noting that
sumptuary laws were instated in a variety of societies and cultures spanning thousands
of years and that the semiotics of clothes “can convey messages about identities”).
19. See generally David Tyack & Elizabeth Hansot, LEARNING TOGETHER: A
HISTORY OF COEDUCATION IN AMERICAN PUBLIC SCHOOLS 8-11 (1992) (examining the
reciprocal relationship between gender in society and gender within schools).
20. Id. at 11.
21. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)
(holding that students may wear black armbands in protest of the war in Vietnam
because students do not “shed their constitutional rights . . . at the schoolhouse gate.”);
see also Leonard v. Sch. Comm. Of Attleboro, 212 N.E.2d 468, 470 (Mass. 1965).
22. Emily Spivak, Dress Codes and Etiquette, Part I: What Not to Wear to High
School in the 1960s, S
MITHSONIAN.COM 5, http://www.smithsonianmag.com/arts-
culture/dress-codes-and-etiquette-part-1-what-not-to-wear-to-high-school-in-the-1960s-
74464285/?no-ist (last visited March 27, 2015).
23. See School Dress Grow More Conservative, N.Y. TIMES (Oct. 24, 1981),
http://www.nytimes.com/1981/10/24/style/school-dress-grows-more-conservative.html.
But cf. Paul D. Murphy, Restricting Gang Clothing in Public Schools: Does a Dress
Code Violate a Student’s Right of Free Expression?, 64 C
AL. L. REV. 1321, 1323
(1991) (pointing to the rise of violence in schools as reason dress codes are necessary,
an argument analogous to the conservative “tough on crime” platform of the late 1980s,
both of which ignored other underlying social problems).
24. See Amy Mitchell Wilson, Public School Dress Codes: The Constitutional
Debate, 1998 BYU
ED. & L.J. 147, 147-48 (1998).
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began at the local level with individual principals or school boards adopting
restrictive dress codes or uniform policies in response to the perceived
specific needs of their community.
25
As state legislatures saw the success,
or at least public acceptance, of the new dress policies, the reforms
expanded with a heightened level of government involvement as a number
of states adopted laws that specifically authorized schools to institute both
uniform and dress code policies.
26
Together, these local and state reforms
spurred national action, culminating in President Bill Clinton’s 1996 State
of the Union address where he explicitly endorsed school uniforms as a
solution to school violence and improved education outcomes.
27
After
hearing the President’s call, more local municipalities answered through
adopting restrictive dress codes, and numerous studies indicate that the
trend of restrictive dress codes and uniforms is continually growing,
finding the number of schools with either a uniform or strict dress code
increases every year for which there is available data.
28
The composition
and requirements of dress codes and uniform policies change based on
jurisdiction and can range from bans on gang related clothing and bans on
clothing with allegedly sexual tones, like leggings, to mandatory uniforms
that can dictate clothing options down to appropriate socks and belts.
29
25. See Wendell Anderson, SCHOOL DRESS CODES AND UNIFORM POLICIES 2-3
(Fall 2002),
http://eric.uoregon.edu/pdf/policy_reports/policy%2report%20dress%20code.pdf
(highlighting how adoption started on a school-by-school and district-by-district basis).
26. See Michael Colasanti, SCHOOL UNIFORMS AND DRESS CODES: STATE
POLICIES, EDUCATION COMMISSION OF THE STATES,
http://www.ecs.org/clearinghouse/77/97/7797.pdf (stating that 21 states and the District
of Columbia have such laws).
27. Address before a Joint Session of the Congress on the State of the Union, 1
PUB. PAPERS 79, 81 (Jan. 23, 1996) (“I challenge all our schools to teach character
education, to teach good values and good citizenship. And if it means that teenagers
will stop killing each other over designer jackets, then our public schools should be
able to require their students to wear school uniforms.”).
28. See Greg Toppo, What to Wear? Schools Increasingly Making That Decision,
USA
TODAY (Aug. 18, 2013),
http://www.usatoday.com/story/news/nation/2013/08/18/more-school-
uniforms/2662387/ (explaining National Center for Education Statistics breakdown of
schools that require dress codes and uniforms finding usage up over 47% in the last
decade); see also Jennifer Weiss-Wolf, School Dress Codes Unfairly Target Girls,
A
LJAZEERA AMERICA (Oct. 14, 2014),
http://america.aljazeera.com/opinions/2014/10/school-dress-
codegirlsstudentprotestsmaplewoodnewjersey.html (arguing that gender neutral dress
codes target female bodies).
29. See Wendy Mahling, Secondhand Codes: An Analysis of the Constitutionality
of Dress Codes in the Public Schools, 80 M
INN. L. REV. 715, 717-18 (1996).
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B. Current Rationales for Dress Codes
As the demands of the twenty-first century have transformed the needs
of students and the challenges of schools, the rationales for dress codes and
uniforms have also evolved in an attempt to maintain a balance between the
requirements of the Constitution, the safety of the institutions, and the free
expression of students.
30
Because these interests are often at odds with
each other, those in administrative roles are faced with difficult decisions.
31
When education first became compulsory in America, the world as a whole
may have been more violent, but schools did not deal with gang violence,
bomb threats, or drug addiction on a regular basis.
32
In attempts to keep
schools as safe places of learning and development, schools, particularly
those in lower income urban areas, began to turn to stringent dress codes or
uniforms to ameliorate outside negative influences.
33
Even schools that are
not dealing with extreme disciplinary issues adopt dress code or uniform
policies in hopes of many of the positive benefits, such as enhanced student
self-esteem, will follow.
1. Gang Prevention and Violence Reduction
As discussed above, reducing gang activity through school dress codes
was a significant factor in the rise of restrictive dress codes and uniform
policies.
34
Because gangs employ an extensive variety of clothing-based
solidarity symbols, including specific colors, athletic teams, bandanas, and
more, these efforts can result in draconian policies.
35
Gangs cause
30. See, e.g., Wilson, supra note 24, at 148-49 (explaining that dress code
opponents are concerned about Constitutionality while their proponents are focused on
the success of dress codes).
31. See, e.g., Alabama and Coushatta Tribes of Texas v. Tr. of the Big Sandy
Indep. Sch. Dist., 817 F. Supp. 1319, 1323 (E.D. Tex. 1993) aff’d, 20 F.3d 469 (5th
Cir. 1994) (holding that a hair length restriction on male students cannot withstand a
challenge based on a “sincerely held religious belief” and gave American Indian
students an injunction against enforcement of the dress code).
32. See HUMAN SECURITY REPORT PROJECT, THE DECLINE IN GLOBAL VIOLENCE:
REALITY OR MYTH? (2014),
http://www.hsrgroup.org/docs/Publications/HSR2013/HSR_2013_Press_Release.pdf
(discussing the assertion that we live in the most peaceful era of human’s existing and
finding that there is sufficient quantitative data to support the argument).
33. See Alyson Ray, Note, A Nation of Robots? The Unconstitutionality of Public
School Uniform Codes, 28 J.
MARSHALL L. REV. 645, 655 (1995) (discussing the first
uniform program in the United States, the Long Beach Unified School District, and the
gang presence that spawned its creation).
34. See Mahling, supra note 29, at 719-22 (focusing on gang violence as a main
motivator in passing dress code requirements, even if the evidence of their success is
questionable).
35. See id. at 718, n.22 (noting that one district went as far as dictating the color of
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problems within schools due in part to their mere presence and in part to
secondary effects such as increased drug sales and consumption, increased
fighting, and an increase in the number of weapons brought on campus.
36
A cynic may point out that dress codes as a solution for gang violence
merely target clothing as window dressing, leaving the underlying
problems that cause students to join gangs in the first place untouched.
37
Although empirical data establishing the success of dress codes curbing
gang-related disruptions is scant, schools are still maintaining dress code
bans based on anecdotal evidence that other students feel less intimated.
38
Although girls are joining gangs in growing numbers, boys are still the
main population of gang members, so dress codes designed to combat gang
issues are inherently more targeted at clothing traditionally associated with
masculinity.
39
Dress codes designed around gang concerns are also tinged
with racism, as they focus mainly on black gangs which can result in
students being targeted for discipline based on their skin color.
40
The
ability to apply facially neutral dress code or uniform policies, either
accidentally or with intent, in a discriminatory manner is not contained to
the gang context.
2. Disciplined Learning Environment
Maintaining discipline is not an entirely contemporary rationale and has
supported school restrictions on the free expression of students for
decades.
41
However, it has found new life in the modern push for dress
shoe laces students can wear).
36. See Murphy, supra note 23, at 1324-25.
37. Cf. Janet Hethorn, Gang Identity or Self-Expression? Researches Look Beyond
the Surface of “Gang Clothing” and Appearance, 48(7) C
AL. AGRIC. 44, 45, 48 (1994)
(comparing gang identity and adolescent style in order to understand whether dress
codes solve or create more problems and finding that school discipline should target
behavior and not appearance).
38. See Philip T.K. Daniel, Violence and the Public Schools: Student Rights Have
Been Weighed in the Balance and Found Wanting, 27 J.L.
& EDUC. 573, 581 (1998)
(arguing that dress codes based on gang activities can be supported on perceived threat
reduction).
39. See, e.g., Olesen v. Bd. of Educ., 676 F. Supp. 820, 821 (N.D. Ill. 1987) (anti-
gang dress code only banned boys from wearing any earrings, regardless of whether
there was proof of gang affiliation).
40. See Murphy, supra note 23, at 1356-57.
41. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 503 (1969)
(allowing arm bands protesting war); see also Morse v. Fredrick, 551 U.S. 393, 393
(2007) (disallowing signs that promoted drug use); Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 260 (1988) (allowing censorship of school newspaper); Ferrell v. Dallas
Indep. Sch. Dist., 392 F.2d 697, 697 (5th Cir. 1968) (allowing regulation of hair
length).
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codes because, in addition to the violence that schools are struggling to deal
with, students today face a perceived ever-growing amount of distractions
and obstacles.
42
Expensive clothing, if not regulated by a dress code, can
lead to fights, thefts, and bullying.
43
By maintaining a dress code or
uniform system, all students are wearing a similar type of clothing with a
similar cost, and therefore, a designer jacket or basketball shoes by today’s
favorite athlete are simply not present.
44
Even the most lenient dress codes
that allow students to choose their clothing largely unrestricted will ban
political or offensive messages if it disrupts the mission or purpose of the
school.
45
Dress codes are seen as the solution to these disruptions because
they remove the stimulus that causes the disruption; however, what is
considered disruptive can be quite subjective.
46
Less disciplinary issues
have been shown to result in improved academic performance, arguably the
main reason for compulsory schooling.
47
However, a disciplined
environment can also refer to an environment in which students who
question any part of the status quo are seen as disruptive regardless of
whether the status quo is a safe and supportive environment for them.
3. Professionalism
Public schools have sought to prepare their pupils for the “real world”
which will require them to conform to a fairly rigid concept of
professionalism in order to achieve the type of success they were taught to
desire during their education.
48
These “professionalism” standards are
rooted in deeply ingrained cultural beliefs of proper behavior and are
42. See Rob Killen, The Achilles’ Heel of Dress Codes: The Definition of Proper
Attire in Public Schools, 36 T
ULSA L. REV. 459, 461 (2000) (explaining that dress
codes justified under the disciplined learning environment theory have led to banning a
“broad range of symbols and apparel.”).
43. See U.S. DEPT. OF EDUC., MANUAL ON SCHOOL UNIFORMS 3 (1996)
http://files.eric.ed.gov/fulltext/ED387947.pdf.
44. Id. (stating that a uniform policy is a “creative way” to improve discipline).
45. See B.H. v. Easton Area Sch. Dist., 725 F.3d 293, 297-98 (3d Cir. 2013)
(overturning a school’s discipline of students who wore bracelets in support of breast
cancer awareness that read “I <3 Boobies”), cert. denied, 134 S. Ct. 1515 (2014).
46. Long hair on boys was disruptive enough for one group of school officials.
The case went all the way to the Fifth Circuit. See Ferrell v. Dallas Indep. Sch. Dist.,
392 F.2d 697, 697 (5th Cir. 1968).
47. See Anderson, supra note 25, at 6 (discussing enhanced academic performance
as a main motivator for adopting restrictive dress codes because it “helps children focus
on their school work.”).
48. See DeMitchell, supra note 1, at 45 (reporting that “Proper Dress=Success”
has been the motto of at least one principal in supporting a dress code and that only one
principal found that culture had changed enough that dress codes were archaic).
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related to the expectation of a disciplined learning environment.
49
A
representative program “has two goals: to prepare students in the standards
of dress and grooming expected in the workplace, and to reinforce values
of discipline and hard work by encouraging students to think of education
as their job.”
50
Dress codes often imitate the type of clothing one would
need to wear in a professional office including button up collared shirts,
dress pants, and ties.
51
For students who, for a variety of reasons, including
body type and gender expression, cannot conform to this idea of
professionalism, dress codes are teaching them early on the struggles they
will face in adulthood.
52
Additionally, because the ideal professional is still
a cis-gendered male, professionalism rationales can still lead to
disproportionate disciplinary measures against those who do not operate
within the gender binary.
53
Because women’s bodies are deemed
inherently sexual, they must take extra care so as to not disrupt a
professional atmosphere with provocative clothing.
54
Again, this leads to
disproportionate violations of dress code policies since female bodies
cannot automatically conform to professional standards based on male
bodies that require a certain minimum level of skin coverage, ban certain
parts of the body from exposure, or bans particular garments worn almost
exclusively by women.
55
C. How Gender Norms Operate Through Dress Codes
Schools exist not only to teach children the fundamentals of the
49. See Anderson, supra note 25, at 6 (comparing “dressing for success” at school
to success “in the office” which assumes a particular career trajectory for all students).
50. Jeremiah R. Newhall, Sex-Based Dress Codes and Equal Protection in Public
Schools, 12 A
PPALACHIAN J.L. 209, 209 (Spring 2013).
51. See Ray, supra note 33, at 656 (discussing the requirements for the Long
Beach Unified School District, the location of the first uniform mandate).
52. See Edward W. Morris, “Tuck In That Shirt!” Race, Class, and Discipline in
an Urban School, 48.1 S
OC. PERSP. 25, 26 (2005) (discussing the relationship between
cultural capital and school dress codes where the lack of capital signified by an
inability to conform results in the alienation of students).
53. Harper v. Edgewood Bd. of Educ., 655 F. Supp. 1353, 1356 (S.D. Ohio 1987)
(upholding a school mandate that prevented student from wearing “clothing of the
opposite sex” to prom).
54. See NAOMI WOLF, THE BEAUTY MYTH: HOW IMAGES OF BEAUTY ARE USED
AGAINST WOMEN 275 (1991) (arguing that appearance is speech for women in a
society that places a higher value on their physical appearance than their substantive
contributions).
55. See Maureen Shaw, 13 Times School Dress Codes Made Young Girls Ashamed
of Their Bodies, M
IC (Sept. 17, 2014), http://mic.com/articles/91425/13-times-school-
dress-codes-made-young-girls-ashamed-of-their-bodies (citing instances in which girls
were disciplined via dress code standards focused on male needs and/or bodies).
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intellectual world, but also to transmit and instruct existing cultural
values.
56
Dominant norms are reproduced through every aspect of the
institution, from the selection of curriculum material to the standards of
what personnel to hire.
57
There is nothing inherently problematic about
children internalizing the mechanics of society, however, when the
mechanics are oppressive or discriminatory, reproduction prevents anyone
disadvantaged by dominant society to adequately challenge their
subjugation.
58
The dominant norm of American society is a hetero, cis,
white, post-secondary educated, upper-middle-class male.
59
Because dress
codes are formulated to enforce dominant norms, the standards reflect what
fits the “stereotypical” white male the best.
60
Dress codes are not created to
alter or challenge social norms; rather, they exist as a maintenance
mechanism to preserve the status quo.
61
Dress codes that reproduce gender paradigms based on sex presuppose
that there are inherent differences for appropriateness in men and women
dress.
62
Through this mechanism, women are held to a particular standard
of dress related to the notion of being “lady-like” and men are required to
dress “manly” instead of dress standards that are appropriate for students in
general.
63
For example, a determination of what behavior is appropriate for
56. See generally Pierre Bourdieu & Jean-Clause Passeron, REPRODUCTION IN
EDUCATION, SOCIETY, AND CULTURE 55 (Richard Nice, trans., Sage Publications 1990)
(1977) (explaining that the structure of schools are constrained by the culture that
spawned them and thereby perpetuate that particular culture).
57. Id. at 57-66.
58. See Morris, supra note 52, at 39, 41-42 (arguing that discipline as a result of a
lack of cultural capital increases negative attitudes towards education thereby
reinforcing a systematic lack of cultural capital).
59. See DEAN SPADE, NORMAL LIFE: ADMINISTRATIVE VIOLENCE, CRITICAL TRANS
POLITICS, AND THE LIMITS OF LAW 108 (2011) (listing norms that social movements
have critiqued as part of the disciplinary power provided by such social norms).
60. Cf. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON
104-05 (Vintage Books, 2d ed. 1995) (1975) (discussing societal determinations of
delinquency and finding that the term is applied to those who cannot conform to the
white heteronormative male standard); see also id. at 104 (applying Foucault’s analysis
to disciplinary power as a tool for social control).
61. See SPADE, supra note 59, at 109-11 (explaining how discipline is used as a
form of population control; those who are able to conform best to norms receive better
life chances).
62. See Graham, supra note 10, at 531 (quoting one administrator in a hair-length
case who justified the gender based rule on the notion that girls can “safely handle their
hair, but not boys”).
63. See Jennifer L. Levi, Some Modest Proposals for Challenges Established Dress
Code Jurisprudence, 14 D
UKE J. GENDER L. & POL’Y, 243, 243-44 (2007) (citing a
litany of cases that have upheld gender-based dress codes that require women to
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women, specifically not being overly enticing to the male gaze, can
regulate the length of a girl’s skirt, rather than a determination based on
comfort or safety.
64
Through dress codes, schools reproduce the social expectation that
enforcing and protecting these differences are essential to the functions of
schools, and thereby society, and that gender can only be performed within
these socially approved norms.
65
Despite these assertions both sex and
gender are significantly more fluid concepts that are not as static as school
policies might imply.
66
Dress codes and gender are both social
constructions, and therefore, there is nothing inherent about them.
67
Ultimately, these justifications are simply an ex post facto understanding of
gender and have no rational basis to the function of schools other than
reproducing the dominant narrative.
68
III. T
HE GENDERIZATION OF DRESS CODES AND THE TRANS* SCHOOL TO
PRISON PIPELINE
Part of the privilege of being cis-gendered is the privilege to not
recognize the negative consequences of a binary gender division.
69
Trans*
students must make calculated choices of which bathroom to use, which
locker room to change in, and which half of a gendered dress code to
follow.
70
In trying to determine which gender dress code to follow, a
conform to stereotypes of femininity and men to conform to masculine stereotypes).
64. See Marinda Valenti, What Do Dress Codes Say About Girls’ Bodies?,
M
S.BLOG (May 24, 2013), http://msmagazine.com/blog/2013/05/24/what-do-dress-
codes-say-about-girls-bodies/ (analyzing dress code rules geared towards girls and
finding that many of the regulations focus on the potential sexualization and the effect
on male students).
65. See SPADE, supra note 59, at 107 (explaining how norms operate to discipline
behavior and punish those that deviate from dominate norms).
66. See JUDITH LORBER, PARADOXES OF GENDER 15 (1994) (discussing the various
ways to “do” gender, noting that gender role and expectations are not static but change
depending on culture and time period).
67. Id. at 13-14 (discussing how society constructs gender over a person’s
lifetime).
68. See Morris, supra note 52, at 45-46 (noting the difficulty of passing on cultural
capital through public schools because of the reliance on discipline risks pushing
students away).
69. See Julia R. Johnson, Cisgender Privilege, Intersectionality, and the
Criminalization of CeCe McDonald: Why Intercultural Communication Needs
Transgender Studies, 6(2)
J. OF INT’L & INTERCULTURAL COMM. 135, 138 (2013).
70. See THE RIGHT TO BE YOURSELF, TRANSGENDER STUDENTS,
http://beyourself.aclu-il.org/?page_id=70 (last visited Apr. 11, 2015) (listing dress
codes, bathrooms, and locker rooms as three school areas in which trans* students can
have difficulty accessing safely).
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trans* student not only has to consider which option reflects their gender
identity and expression, but also whether the administration and student
body will recognize their gender, and how that relates to their safety.
71
The
increased rigidity in school disciplinary systems and the collateral
consequences of violating them complicates one’s ability to navigate these
decisions.
72
Trans* students who do not “correctly” navigate these
decisions risk entering the school to prison pipeline.
73
A. The School to Prison Pipeline: An Overview
The school to prison pipeline is a term developed to explain the
relationship between the policies that push at-risk youth “out of classrooms
and into the juvenile and criminal justice systems.”
74
Because education is,
for the most part, governed locally, the particular polices can vary, but
generally include an increased use of suspension and expulsion, high-stakes
testing, ignoring or bypassing due process protections, and an increased
presence of police officers on school campuses.
75
There is not a single
statistic that proves the existence of the pipeline, but when studies of the
effects of the individual policies are taken in the aggregate they
demonstrate a direct correlation to the inflated risk of incarceration.
76
The
pipeline can act directly, when a student is arrested by an in-school police
71. See Joseph G. Kosciw et al., THE 2013 NATIONAL SCHOOL CLIMATE SURVEY:
THE EXPERIENCE OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER YOUTH IN OUR
NATION’S SCHOOLS 39 (2013),
http://www.glsen.org/sites/default/files/2013%20National%20School%20Climate%20
Survey%20Full%20Report_0.pdf (finding that adherence to traditional gender norms
can result in punishment, harassment, and bullying for trans* students that do not
conform to gendered expectations).
72. See ADVANCEMENT PROJECT, EDUCATION ON LOCKDOWN: THE SCHOOLHOUSE
TO JAILHOUSE TRACK 12 (2005),
https://b.3cdn.net/advancement/5351180e24cb166d02_mlbrqgxlh.pdf [hereinafter
L
OCKDOWN] (discussing the rise of zero tolerance policies and the negative social
effects that result from their enforcement).
73. See Grant et al., supra note 3, at 44 (finding a correlation between being
harassed at school and being incarcerated later in life).
74. See What Is the School to Prison Pipeline?, ACLU,
https://www.aclu.org/what-school-prison-pipeline?redirect=racial-justice/what-school-
prison-pipeline (last visited Apr. 11, 2015).
75. See id.; see also LOCKDOWN, supra note 72, at 27, 35, 41 (listing the different
policies in a variety of school districts that contribute to the school to prison pipeline).
76. See Marilyn Elias, School-to-Prison Pipeline: Policies and Practices That
Favor Incarceration Over Education Do Us All a Grave Injustice, 43 T
EACHING
TOLERANCE 39, 39-40 (2013),
http://www.tolerance.org/sites/default/files/general/School-to-Prison.pdf (summarizing
statistics and policies that convey racial disparities in the criminalization of students).
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officer, and indirectly when a student drops out, which is correlated with
higher rates of incarceration.
77
The pipeline is composed of policies which
can be arranged into three main categories: achievement, discipline, and
safety.
78
These prongs are an artificial divide; in reality all three act
collectively to drastically increase the risk of future incarceration.
Although the school to prison pipeline was coined largely to comment on
the increased incarceration rates of racial minorities, the policies have the
same effect on trans* students who similarly lack the cultural capital to
reproduce the dominant norms these policies demand of them.
79
B. A Trans* Specific School to Prison Pipeline: Dress Codes as an Entry
Point
Dress codes are a method of reinforcing gender norms and rely heavily
on a binary system which leaves no space for those whose gender identities
and expressions do not conform to the two dominant categories.
80
Trans*
students are subjected to harassment and bullying from both students and
staff, biased application of disciplinary policies, and push out tactics at
rates disproportionate to representation in the school population and higher
than that of their LGB counterparts.
81
Gendered dress codes are a specific
point of entry for the school to prison pipeline because clothing choice is an
integral part of gender identity and expression.
82
77. See ADVANCEMENT PROJECT, TEST, PUNISH, AND PUSH OUT: HOW “ZERO
TOLERANCE” AND HIGH-STAKES TESTING FUNNEL YOUTH INTO THE SCHOOL-TO-
P
RISON PIPELINE 29 (2010),
https://b.3cdn.net/advancement/d05cb2181a4545db07_r2im6caqe.pdf [hereinafter
P
USH OUT] (listing methods of push out which include out of class punishments that
make a student more likely to fall into academic trouble, students ashamed of low
grades and test scores who act out and are then expelled or sent to alternative schools,
and students being held back a grade due to low test schools more likely to drop out).
78. See Pipeline, supra note 4 (displaying a visual diagram illustrating the prison
pipeline’s functions).
79. See Hilary Burdge et al., LGBTQ YOUTH OF COLOR: DISCIPLINE DISPARITIES,
SCHOOL PUSH-OUT, AND THE SCHOOL-TO-PRISON PIPELINE 4 (2014),
http://www.gsanetwork.org/files/aboutus/LGBTQ_brief_FINAL-web.pdf [hereinafter
LGBTQ
YOUTH OF COLOR] (finding that LGBT youth of color face a particular set of
issues due to the intersection of having two minority identities).
80. See Harris, supra note 12, at 152 (noting that transgendered identities
inherently “trouble” the male-female binary).
81. See Kosciw et al., supra note 71, at 87 (finding that trans* students experience
negative reactions even in the absence of overt victimization).
82. See Laurel Grbach, Transgender Student Dress: Free Speech and Protected
Expression in Public Schools, 22 T
EMP. POL. & CIV. RTS. L. REV. 526, 537 (2013)
(explaining that transgender students use “clothing to express to others one of the
fundamental aspects of who they are”).
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1. Achievement: Academic Success or Failure
a. Gender restrictive dress codes bring negative attention to the
gender expression of trans* students leading to lowered academic
performance
Clothing choice is intensely personal for all students, but particularly for
trans* students who may not yet have access to gender confirming health
care.
83
When a trans* student wears clothing or accessories that do not
match their “biological” sex, both teachers and administrators take notice
and discipline students for behavior that typically would not have resulted
in punishment for a cisgendered student.
84
Other students, teachers, and
administrators notice the increased attention and thereby become aware of
the student’s gender identity and transition. Being called out by teachers in
class, called out of class by administrators, and made to wear special school
clothing, a trans* student becomes increasingly visible and a target for
violence and harassment.
85
As a result of this increased attention, trans*
students no longer feel that school is a safe space.
86
The lack of acceptance
and comfort leads to increases in stress and absences, both of which result
in lowered academic performance measured in GPAs and standardized test
scores.
87
In addition to lower performance, such harassment also leads to
lowered academic aspirations.
88
83. See Harris, supra note 12, at 162-63 (explaining that trans* youth do not
always have access to medical interventions or gender confirming health care because
they either cannot consent on their own or it is not safe for them to begin medical
interventions, so dress becomes an even more significant expression of their gender
identity).
84. See, e.g., Zack Fork, California School Agrees to Respect Transgender Student
Identities, T
HINK PROGRESS (Oct. 10 2014),
http://thinkprogress.org/lgbt/2014/10/15/3579989/california-school-transgeder-
agreement/ (discussing a female-identified trans* student who was punished for
wearing makeup, for which her punishment included an apology letter to male students
for making them feel uncomfortable, when all while cisgendered female students were
allowed to wear makeup without any disciplinary consequences).
85. Greytak et al., supra note 3, at 18 (reporting that about 87% of trans* students
were verbally harassed and 53% were physically harassed at school due to their gender
expression).
86. Id. at 14 (noting that 65% of trans* students feel unsafe because of their gender
expression and 36% because of their gender identity).
87. Id. at 25 (noting that the GPAs of trans* students who experienced harassment
were significantly lower than those who were not).
88. Id. at 25, 27 (finding that 40% of trans* students who experienced harassment
were not planning on pursuing secondary education).
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b. Low Grades, Drop Out Rates, and Future Risk of Incarceration
Academic success is one of the, if not the, primary purposes of
compulsory education and is a determining factor in a person’s future
success; particularly in staying out of poverty and out of the criminal
justice system.
89
For many students, the days of school missed, lack of
safety or comfort in the school environment, and inability to meet
increasingly high standardized test expectations push them out of the
school system entirely prior to graduation.
90
The modern pressures of high-
stakes testing results in schools that are more willing to push out low
performing students, regardless of why a student is underachieving, via
disciplinary measures.
91
Graduating with a low GPA or not graduating at all does not
automatically result in incarceration; however, the numerous side-effects
vastly increase the risk of future incarceration.
92
A student who does not
graduate is eight times more likely to be incarcerated in the future than a
student who does graduate.
93
Forty-eight percent of trans* students who
leave school experience homelessness, a common entry point into the
criminal justice system.
94
Drug and alcohol abuse are also more common
amongst trans* students unable to graduate, which is associated with higher
rates of incarceration.
95
Without an education, particularly a high school
diploma, it can be difficult to find sustainable employment which results in
trans* people resorting to street economies for survival, thereby increasing
their risk of incarceration.
96
When all these effects are taken together, it is
89. Cf. SYLVIA RIVERA LAW PROJECT, Systems of Inequality: Poverty and
Homelessness, http://srlp.org/files/disproportionate_poverty.pdf (last visited Apr. 12,
2015) (linking barriers to education to the cycle of poverty for trans* people).
90. See PUSH OUT, supra note 77, at 29 (finding students that are “discouraged or
ashamed” of their low test scores act out behaviorally resulting in punishments that
take students out of the classroom further impacting their academic achievement).
91. Id. at 28 (discussing the choice that educators have to make between the
interest of the student and their own self-interest on behalf of the school in maintaining
test scores). How disciplinary measures result in increased incarceration risks are
discussed in the next section.
92. See Grant et al., supra note 3, at 32 (noting that those with higher education
levels are more able to avoid problems, including incarceration).
93. See Pipeline, supra note 4 (explaining for all students, not just trans*).
94. Grant et al., supra note 3, at 33 (trans* youth are also overrepresented in the
homelessness population).
95. Id. at 33 (explaining that substance abuse is often a way to cope with
experiencing mistreatment).
96. See id. at 51 (noting that trans* people in general had double the
unemployment rate of the general population and that 16% of trans* people resorted to
underground or street economies for survival).
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clear that enforcement of gendered dress codes on trans* students subverts
the goals of compulsory schooling and leaves these students without an
education that is a crucial element in decreasing or even preventing the risk
of incarceration.
97
2. Discipline: A Precursor to the Criminal Justice System
a. Gender restrictive dress codes increase the amount of
administrative discipline trans* students are subjected to
When a student violates a dress code, the school administration can
impose a variety of disciplinary mechanisms including suspension or
expulsion.
98
Trans* students can violate a gendered dress code by either
not wearing gender appropriate clothing for their “biological sex” or for
wearing clothing that would not result in disciplinary action if it were not
worn by a trans* student.
99
For trans* students, administrators that are
transphobic can use dress code violations to punish those who transgress
the gender binary.
100
Administrators are often not transphobic, simply
trans-ignorant, but still disproportionally discipline trans* students for dress
code violations.
101
Trans* students that are otherwise not disciplinary
issues and therefore do not come into contact with the administration are
97. See ADVOCATES FOR CHILDREN OF NEW YORK, IN HARMS WAY: LESBIAN,
GAY, BISEXUAL, AND TRANSGENDER STUDENTS WHO SPEAK ABOUT HARASSMENT AND
DISCRIMINATION IN NEW YORK CITY SCHOOLS 5 (2005),
http://www.advocatesforchildren.org/sites/default/files/library/in_harmes_way_lgbt_re
port_2005.pdf?pt=1 (finding over a third of the trans* students not in school left
because of harassment and discrimination).
98. See Hilary Burdge et al., GENDER NONCONFORMING YOUTH: DISCIPLINE
DISPARITIES, SCHOOL PUSH-OUT, AND THE SCHOOL-TO-PRISON PIPELINE 5 (2014),
http://www.gsanetwork.org/files/aboutus/GSA_GNC_FINAL-web.pdf [hereinafter
G
ENDER NONCONFORMING] (listing punishments that deny students educational
opportunities including removal from classrooms, suspensions, and involuntary
transfers).
99. See, e.g., Doe v. Yunits, No. 001060A, 2000 WL 33162199, at *1 (Mass.
Super. Ct.), aff’d sub nom, Doe v. Brockton Sch. Comm., No. 2000-J-638 (Mass. App.
2000) (noting that a transgirl was not allowed to attend school for wearing female
attire); Fork, supra note 84 (noting that a transgirl was disciplined for wearing makeup
while cisgirls were not).
100. See GENDER NONCONFORMING, supra note 98, at 6-7 (citing examples of
administrators blaming students for their own victimization because they do not follow
the gender binary).
101. See Jerome Hunt & Aisha Moodie-Mills, THE UNFAIR CRIMINALIZATION OF
GAY AND TRANSGENDER YOUTH: AN OVERVIEW OF THE EXPERIENCES OF LGBT YOUTH
IN THE JUVENILE JUSTICE SYSTEM 3 (2012), https://cdn.americanprogress.org/wp-
content/uploads/issues/2012/06/pdf/juvenile_justice.pdf.
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brought into the disciplinary fold via dress code violations.
102
Schools
often claim that trans* students’ dress caused a disruption to justify the
disciplinary action even if no actual disruption took place until the
disciplinary action itself.
103
Unlike students who violate the dress code
solely as an anti-authoritarian act, trans* students are seeking, against great
difficulty, to live an authentic life.
104
However, their gender nonconformity
is seen as a disruption and challenge to authority, resulting in
disproportionate levels of disciplinary action.
105
When a trans* student is
made to remain outside the classroom due to their gender expression, the
school is punishing that trans* student not for their behavior but for their
identity.
106
Ultimately, threatened or actual disciplinary action as a result
of violating a dress code through one’s gender expression forces students to
choose between living their gender authentically and their education.
107
b. School Discipline as a Fast Track to Incarceration
Perhaps more than any of the classifications, disciplinary action feeds
directly into the school to prison pipeline.
108
Disciplinary actions can range
from mild, including a warning, to the extreme, including in-school
arrests.
109
The increase in zero-tolerance policies and in-school police
officers has resulted, unsurprisingly, in an increased amount of on-campus
arrests as a form of school discipline, which directly pushes students into
the criminal justice system.
110
Push out
111
occurs where students who face
102. See Harris, supra note 12, at 164-65, 167 (listing two cases where trans*
students received school discipline for dress code violations but were not otherwise
behavior issues).
103. See Doe, 2000 WL 33162199, at *3 (principal made student change prior to
entering the school every day so it is unknown what effect allowing entrance would
have had).
104. See Christine L. Olson, Transgender Foster Youth: A Forced Identity, 19 TEX.
J. WOMEN & L. 25, 29 (2009) (reviewing the psychological importance of allowing
trans* children to express their gender identity).
105. See LGBTQ YOUTH OF COLOR, supra note 79, at 6 (recounting stories of
trans* youth who were “watched” because of their lack of gender conformity).
106. See GENDER NONCONFORMING, supra note 98, at 8 (listing the loss of
educational time as a negative challenge trans* students face).
107. See Doe, 2000 WL 33162199, at *1 (recounting that the student was told that
they would be allowed into school so long as they wore clothes that matched their natal
sex, despite a diagnosis of Gender Identity Disorder).
108. See LOCKDOWN, supra note 72, at 11 (citing increased, harsh disciplinary
measures as a direct track within the school to prison pipeline).
109. See id. at 35 (listing various punishment tracks in Chicago public schools).
110. Id. at 15-17 (explaining how “zero-tolerance” was a term taken from the war
on drugs).
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exclusionary disciplinary measures that prevent them from receiving an
education or social support eventually drop out of school.
112
Trans*
students are not only punished for infractions that are not applied to
cisgenderd students, they are also punished more harshly for infractions.
113
Students who are subjected to disciplinary measures that remove them from
the classroom are often left without supervision and without a constructive
environment leading to a higher likelihood of interaction with the criminal
justice system.
114
Disciplinary measures can also include being sent to a
special disciplinary school, so the “bad” student will not hold back the
success of a “good” student at the general public school.
115
These schools,
sometimes run by for-profit institutions, are not held to the same
educational standards as “normal” schools, so even if a student survives
push out forces, they are still left with a substandard education.
116
Not all trans* students who are out at school are out to their families at
home due to the serious risk of family rejection.
117
Disciplinary measures
at school, when related to a student’s gender identity can “out” them at
home, forcing them to foster care or homelessness, both of which carry
increased risks of future incarceration.
118
As with achievement, trans*
students that are not directly funneled into the criminal justice system via
school discipline are left vulnerable to future incarceration due to a
substandard education.
119
111. See supra Part III(b)(i).
112. See GENDER NONCONFORMING, supra note 98, at 5.
113. Id. at 4 (telling the story of a trans* student who was punished more harshly
for arriving late than the other students who matched that gender expression).
114. See Pipeline, supra note 4 (noting the consequences that children face being
out of an educational environment, like falling behind in classes and a greater sense of
disengagement).
115. See PUSH OUT, supra note 77, at 28-29 (discussing how the modern structure
of schools do not allow teachers to use discretion in how they handle behavioral issues
and high-stakes testing incentivizes, pushing struggling students to alternative schools).
116. See Pipeline, supra note 4 (noting that these schools may not have to meet a
minimum number of class hours or have particular curriculum requirements).
117. See Grant et al., supra note 3, at 88 (stating that 57% of trans* people
experience family rejection).
118. See id. (noting that trans* people who experience family rejection are three
times more likely to experience homelessness).
119. See id. at 32 (noting that higher education levels are inversely correlated with
risk of incarceration).
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3. Safety: Harassment or Incarceration, Between the Anvil and the
Hammer
a. Gender restrictive dress codes create an unsafe atmosphere for
trans* students who face both discipline and harassment
Safety is a major concern for trans* people because they face
disproportionate levels of violence in essentially all areas of life.
120
This is
no less a serious concern for trans* students, many of whom are just
beginning to understand their gender identity or go through transition.
121
Part of the safety analysis a trans* person goes through is determining who
to be “out” with and whether people will pick up on incongruities in their
gender expression.
122
When dress codes are gender restrictive, a trans*
student must decide whether to violate and face the inevitable harassment
or to not violate and live with a gender expression that does not match their
gender identity.
123
This choice is not idly made as the harassment trans*
students are subjected to is both serious and pervasive.
124
So long as they
are viewed as their natal sex by schools, trans* students cannot transition or
live with a congruent gender expression and identity without violating
dress codes.
125
Students may delay transitioning or being “out” regarding
their gender identity for fear of violating school policies, including dress
codes.
126
When a trans* student is disciplined or called out for violating a
dress code, a target is painted on their backs as other students and teachers
are made aware that the student will not be protected if and when they are
120. See generally id. (finding, in every section of the report, significant rates of
violence against trans* people in many areas of life).
121. See id. at 26 (finding that the age of transition spikes significantly after age 18
with less than 10% of trans* people entering transition before 18).
122. See Greytak et al., supra note 3, at 14 (listing various ways in which trans*
students face harassment for their gender identities, including not fitting into traditional
masculine and feminine norms, sexual orientation, and the intersection of multiple
characteristics).
123. See GENDER NONCONFORMING, supra note 98, at 2 (quoting a student who
reported that a trans* student’s gender expression “may have contributed to a lot of
harassment.”).
124. See, e.g., Grant et al., supra note 3, at 33 (listing statistics on harassment that
trans* students experience in school, finding that almost all trans* students experience
some level of mistreatment).
125. See, e.g., Doe v. Yunits, No. 001060A, 2000 WL 33162199, at *2-4 (Mass.
Super. Ct. Oct. 11, 2000), aff’d sub nom, Doe v. Brockton Sch. Comm., No. 2000-J-
638 (Mass. App. 2000) (recounting that a trans* girl was not allowed to attend class
because she was not wearing masculine clothing).
126. See Kosciw et al., supra note 71, at 39-40 (finding that many trans* students
are targeted in ways other students are not, including not being able to use their
preferred name or wearing their preferred gender of clothing).
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attacked for their gender identity.
127
Attack is not an understatement, as
trans* students face verbal and physical assaults from fellow students,
teachers, and administrators regarding their gender identity.
128
All too
often, trans* students themselves are blamed for whatever safety concerns
they have, being told they bring it on themselves by “choosing” to deviate
from the gender binary.
129
It also teaches trans* students that
administrations will not support any of their other needs, including access
to gender segregated places such as bathrooms.
130
b. Lack of Safety: An Amalgamation of Pathways to Incarceration
Being forced to choose between one’s safety and education is a decision
no student should have to make. This calculus is further complicated by
the risks of failing to receive an adequate education.
131
For trans* students,
the choice is serious seeing as eighty-seven percent report verbal
harassment and forty-four percent report physical assaults within the past
school year.
132
Students and faculty alike perpetrate violence and
harassment, leaving trans* students with nowhere to turn.
133
In response to
the lack of safety provided by schools, trans* students will skip classes or
stop attending school entirely.
134
If a trans* student remains in school
despite constant harassment and then acts out to stop the harassment, they
face disciplinary measures often disproportionate to that faced by their
harasser.
135
As explained in previous sections, this push out prevents
students from reaping the benefits of education, particularly gainful
127. See GENDER NONCONFORMING, supra note 98, at 7.
128. See Grant et al., supra note 3, at 37-38 (finding thirty-five percent of trans*
students are physically assaulted by students and five percent are physically assaulted
by teachers or administrators).
129. See GENDER NONCONFORMING, supra note 98, at 6 (recounting stories where
trans* students were blamed for their own harassment and told that it would stop if they
conformed to gender norms).
130. See Greytak et al., supra note 3, at 1-2, 48 (noting the importance of
administrative support for trans* students in accessing gender restrictive places and the
negative effects that a hostile climate can create upon their lives).
131. See Grant et al., supra note 3, at 44 (linking negative educational experiences
with negative effects later in life including unemployment and incarceration).
132. Greytak et al., supra note 3, at 18-19.
133. Grant et al., supra note 3, at 37-38 (looking at the rates of violence against
trans* students by students, teachers, and administrators and finding that harassment by
adults had a greater negative impact upon the student).
134. Greytak et al., supra note 3, at 14 (nearly half of trans* students will miss a
day of school due to safety concerns).
135. See Hunt & Moodie-Mills, supra note 101.
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employment.
136
In addition to missing employment opportunities due to
lack of an education, trans* people in general face high levels of
employment discrimination which leaves the most vulnerable trans* youth
to resort to street economies and thereby increases contact with the criminal
justice system.
137
Many trans* students turn to drug or alcohol abuse to
cope with the harassment they face, which again increases the risks of
future incarceration.
138
In their attempts to make schools a safer place
through dress codes, administrators have actually increased the threat levels
to trans* students vis-à-vis enforcement of those gender restrictive dress
code policies.
IV. C
ONCLUSION
Even their proponents will admit that dress codes are a means of
enforcing behavior based on social norms and expectations which exist to
perpetuate the status quo. However, what their proponents often do not
realize, or realize and do not care, is that these social norms are predicated
on maintenance of a hierarchy which punishes those unable or unwilling to
conform to dominant cultural norms. In particular, gendered dress codes
are disproportionally used to “punish” trans* students’ gender identity and
expression which leads to negative academic and mental health outcomes.
Given the correlation between negative academic and mental health issues,
dress codes operate as a means of entry to the school to prison pipeline for
trans* students. These forces are intertwined and operate through lowered
achievement, increased discipline, and lowered safety simultaneously and
separately to produce a confluence of pressures that result in increased
incarceration and poverty for the trans* students. Despite the negative
atmosphere created, the attitudes of students and administrators are
changing, particularly as understanding of trans* identities grows. Greater
understanding alone will not cause change but it is reasonable to hope that
as understanding grows, so will tolerance and in the process the trans*
school to prison pipeline will be demolished.
136. See PUSH OUT, supra note 77, at 8 (noting that push out policies lead to
unemployment and underemployment, which also leads to incarceration).
137. See Grant et al., supra note 3, at 3 (noting that trans* people have double the
rate of unemployment as the general population and that 90% of trans* people have
faced workplace discrimination).
138. See id. at 44 (finding 35% of trans* students harassed or assaulted used drugs
to cope and the number is higher for those who were physically assaulted or had to
leave school).
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