School districts often have gender-based dress codes, outlining specific requirements for students such as mandating a particular skirt length for female students or prohibiting muscle shirts for male students. In late 2022, the U.S. Government Accountability Office (GAO) released a report on school dress codes that made multiple findings regarding the disproportionate impact of dress codes on girls and minorities.

GAO estimated that of the 93% of school districts with some kind of dress code or policy, more than 90% of them have rules that prohibit clothing worn by female students. Included in the GAO’s report’s recommendations was a directive that the U.S. Secretary of Education should provide resources to help districts and schools design equitable dress codes. Some school districts have already taken steps to address school dress code policies to make them more inclusive for all students by noting that students can wear clothing that conforms with their self-identified gender.

The Fourth Circuit also addressed the applicability of Title IX to school dress codes in its recent decision in Peltier v. Charter Day School (4th Cir. 2022). In that case, a public charter school’s dress code required girls to wear skirts to school and male students to wear shorts or pants, among other requirements specific to male and female students respectively. A mother of a female kindergarten student challenged the skirt requirement. The Court in Peltier held that “Title IX unambiguously applies to sex-based dress codes.” This case is illustrative of the challenges school districts could face with dress codes that have requirements specific to students’ genders.

In June 2021, the U.S. Department of Education’s Office for Civil Rights issued a Notice of Interpretation, explaining that Title IX’s prohibition of discrimination on the basis of sex extends to discrimination based on gender identity and sexual orientation. The proposed Title IX regulations that the U.S. Department of Education released in June 2022 proposed to include discrimination based on gender identity and sexual orientation under the scope of Title IX sex discrimination. The proposed regulations potentially may require significant changes to many school dress codes.

What this means to you

School dress codes will undoubtedly continue to be a hot topic in education as schools navigate recent court decisions and the new Title IX regulations and update their policies to reflect the new requirements. If you are interested in learning more about Title IX and its applicability to school dress codes, please join Husch Blackwell attorneys for an all-day training on January 18, 2023. You may register here.