Less than a month after lesbian student Constance McMillen won her suit against Mississippi's Itawamba County School District for prohibiting her from attending the school's senior prom in a tux with her girlfriend, another lesbian student from Mississippi is suing her school for discrimination. The issue is, again, whether schools can regulate when and where girls wear tuxedos, but this time the venue in question isn't the prom; it's the yearbook. And in terms of their legal defensibility, the two are not equal.
This week ACLU counsel Christine Sun, the same attorney who represented Constance McMillen, filed a complaint [PDF] in the Southern Mississippi U.S. District Court on behalf of Ceara Sturgis, a 2010 graduate of Wesson Attendance Center, the K-12 public school Sturgis has attended her whole life. According to the complaint, in the summer of 2009, Sturgis, who has worn mostly unisex or traditionally male garb since coming out in 9th grade, received permission from a school-appointed photographer to sit for her senior yearbook photo in a tuxedo.
When Sturgis’ mother, Veronica Rodriquez, approached Principal Ronald Greer in the beginning of the 2009-10 school year to make sure the photo would appear in the year book, Greer said no and added, "Tuxes for boys, drapes for girls." Sturgis' mom appealed to Copiah County School District superintendent Robert Holloway, who told her there was no district policy prohibiting girls from appearing in tuxedos in the yearbook, but on the day of the photo submission deadline, a school district employee informed Rodriquez that her daughter's photo would not appear. Principal Greer refused to reconsider. The ACLU sent a letter to the school then, alerting it to the discriminatory nature of the decision, and then bided its time to see whether Sturgis' portrait would appear alongside the other senior portraits. It didn't.
Given Constance McMillen’s victory , on top of many other recent rulings in Southern federal courts defending the rights of LGBT students, Sturgis' case might seem to the lay observer an easy win. But in fact, Sun has her work cut out for her.
In LGBT prom cases, a plaintiff typically asserts that wearing a tux to the prom and/or attending with a female date is a form of self-expression, the right to which is protected under the First Amendment. McMillen prevailed primarily on those grounds. A school yearbook, on the other hand, counts as a school-sponsored student publication and thus isn't considered an entirely public forum. In the 1988 case Hazelwood School District et al. v. Kuhlmeier et al , the U.S. Supreme Court ruled that because the school newspaper at a suburban St. Louis high school was produced as part of a journalism class, it wasn't a public forum, and thus school administrators had the right to censor its content.
Rather than making a First Amendment claim on Sturgis' behalf, Sun is arguing that Wesson Attendance Center violated Sturgis' rights to equal protection under the 14th Amendment and Title IX, which Congress passed in 1972 to enforce the equal protection clause in cases of gender discrimination in an education. "Title IX clearly says school can't discriminate on the basis of sex," said Sun, which includes penalizing individuals for not conforming to gender stereotypes. But this approach, too, is far from airtight. The only specific precedent for it is a 2002 case that was settled out of court and thus couldn't be included in Sturgis' complaint. In 2002, student Nikki Youngblood, represented by the National Center for Lesbian Rights, sued her Florida school district after Robinson High administrators refused to allow her to sit for her senior yearbook photo in a suit and tie. A federal district court dismissed the case, stating that not having your photo appear in the yearbook wasn't dire enough Title IX discrimination to merit legal action. The school agreed to settle and change its policies after Youngblood appealed the dismissal , which means the dismissal remains the only decision on the books in Youngblood .
The major challenge in Sturgis' case then, Sun said in an interview yesterday, is to persuade the court "to recognize that this type of [sex] discrimination is serious and that schools shouldn't be requiring students to conform" to gender stereotypes. "It's quite an uphill battle. Traditionally courts have given a great deal of deference to school districts in how they enforce dress codes." The ACLU will attempt to prove that gendered dress codes do harm outweighing any positive function they might serve. "I honestly don't [see] the legitimate school interest in doing this," Sun said. "I don't think there's a role for the government in telling anybody that women have to be feminine and men have to be masculine, and if you don't conform to that, you're not allowed to participate in this activity that everyone else can." For her part, Sturgis says she is nervous about the case-Sun has conveyed to her the legal obstacles to be overcome. "It's really difficult," Sturgis said yesterday. "I just hope that I win this, and that if I win no one will ever have to go through what I had to go through."
Photo of Constance McMillen by Angela Weiss/Getty Images.