Procedural Posture
The plaintiff, in a case brought on her behalf by her guardian Jane Doe, sued for declaratory and injunctive relief from the dress code of the defendant junior high school and its officials. Because this was a request for a preliminary injunction against the school, a public entity, the court was required to examine Doe’s claim of injury and her chance for success on the merits, as well as any risk of injury that might flow to the public interest were the injunction to be granted.
Facts
The plaintiff, who was biologically male, first began to express her female identity in junior high school by wearing make-up and girls’ shirts and accessories. The defendant’s dress code prohibited “clothing which could be disruptive or distractive to the educational process or which could affect the safety of students”. The school principal would send the plaintiff home to change clothes if she arrived at school wearing girls’ clothes. In June 1999 the school referred the plaintiff to a therapist who diagnosed that she had gender identity disorder and found that preventing the plaintiff from wearing clothing consistent with her gender identity could harm the plaintiff’s mental health.
When the school year resumed in September, the plaintiff was instructed to visit the principal every morning so he could “approve [her] appearance”. Among other things, the plaintiff wore skirts, dresses, wigs, high heels, and padded bras with tight shirts, none of which were prohibited under the school dress code. She was often sent home to change and would be so upset that she would not return.
The plaintiff also had trouble with her classmates and teachers for, among other things, flirting, putting on make-up in class, dancing in the hall, using the girls’ bathroom, grabbing a boy’s buttocks, and telling the school that she and a boy had engaged in oral sex.
The plaintiff eventually stopped attending school altogether due to the “hostile environment”, and she was held back a grade. Before enrolling the following year, school officials told the plaintiff and her family that she would not be allowed to enrol if she wore girls’ clothes or accessories. At the time of the trial, the plaintiff was not attending school but was being tutored at home by a teacher provided by the school.
Issue
Whether preventing a transgendered teenager from wearing the clothing of the opposite sex denied her the right to freedom of expression, the right to be free from sex discrimination, and was a denial of her liberty interest in her appearance as guaranteed under the Declaration of Rights of the Massachusetts Constitution.
Domestic Law
Massachusetts Constitution, Declaration of Rights, Articles I, II, X, XIV, XVI and CXIV.
Harper v. Edgewood Board of Education, United States District Court for the Southern District of Ohio, 1987 (finding that where, to preserve community values and maintain discipline, the school board prevented two students from attending the school prom dressed in clothes of the opposite gender, the students’ freedom of expression rights were not violated).
Spence v. Washington, United States Supreme Court, 1974 (holding that a peace symbol attached to an upside-down flag sent a purposeful message that people could understand).
Texas v. Johnson, United States Supreme Court, 1989 (establishing a judicial test for whether an individual’s actions constitute expressive speech protected under the law).
Reasoning of the Court
The Court found a likelihood that plaintiff would succeed on the merits. The Court first addressed whether the plaintiff’s acts were expressive speech and therefore protected under Articles II, X and XIV of the Massachusetts Constitution. Drawing on the case of Texas v. Johnson, the Court followed a two-prong test: whether the plaintiff’s style of dress was expression that could be understood by those perceiving it; and whether denying the plaintiff the right to dress as a girl at school was suppression of protected speech.
Through the case Spence v. Washington, the Court established that “[s]ymbolic acts constitute expression if the actor’s intent to convey a particularised message is likely to be understood by those perceiving the message”. The plaintiff was likely to be able to show that wearing clothing associated with the female gender was an expressive statement about her identification with that gender. The plaintiff’s therapist stated that dressing according to her gender was important for her well-being and health. Thus, her style of dress “was not merely a personal preference but a necessary symbol of her very identity”. The hostility expressed by fellow students and teachers established proof, in the Court’s view, that those perceiving the plaintiff’s “expression” understood it: namely that her choice to dress in girls’ clothes was because she identified as a girl.
Next the Court found that the plaintiff had a strong likelihood of being able to show that the defendant’s conduct was meant to suppress her expressive speech. By disciplining the plaintiff for wearing the same clothing that other girls at the school wore, the school was restricting speech that conveyed a specific message, that she alone was prevented from conveying her gender identity. The Court was not convinced by the defendant’s argument that the plaintiff was dressing in a distracting manner for which any student would be disciplined. The defendants were not distracted by the clothes themselves, but by the fact that the student wearing them was biologically male.
The defendants also suggested that the plaintiff’s “harassing behaviour towards classmates” was detrimental to the learning environment. The Court found that the issue of the plaintiff’s behaviour was distinct from the issue of how the plaintiff dressed because “expression of gender identity through dress can be divorced from conduct in school that warrants punishment, regardless of the gender identity of the offender”. The school could discipline a student for threatening, harassing or obscene conduct, but could not discipline a student for wearing gender specific clothing.
The plaintiff also asserted a liberty interest under Articles I and X of the Massachusetts Constitution. The Court found that the plaintiff would be likely to prevail on this claim as well. It recognised that the plaintiff would be able to demonstrate that her attire was not distracting and that the defendant’s interests did not outweigh her liberty claim. In addition, it held that the defendant was guilty of sex discrimination for disciplining the plaintiff, who identified as female, when she wore clothes that other female students would not have been disciplined for wearing. The Court distinguished the plaintiff’s case from Harper v. Edgewood Bd. Of Education on the grounds that the plaintiff “is not merely engaging in rebellious acts to demonstrate a willingness to violate community norms; plaintiff is expressing her personal identity, which cannot be suppressed by the school merely because it departs from community standards”. The Court further stated that it could not allow “the stifling of plaintiff’s selfhood merely because it causes some members of the community discomfort”.
The Court found that the plaintiff satisfied the burden of irreparable harm when she was denied the benefits of school, being in an interactive environment, and social development. The Court preliminarily enjoined the defendant from disciplining the plaintiff for wearing clothing that any other male or female student could wear without consequences.
Doe v. Yunits et al, Superior Court of Massachusetts, United States (full text of judgment, PDF)
