As most followers of the current “prom season” are aware, Constance McMillen was barred by her high school from wearing a tux and bringing her girlfriend to her senior prom at Itawamba Agricultural High School in Fulton, Mississippi. The school district maintained that girls must wear dresses and could only be accompanied by boys as dates. When the ACLU won a preliminary ruling finding the school had violated Constance’s first amendment rights to expression the school district responded not by opening up the prom to tux-wearing, girlfriend-bringing Constance, but instead canceled the prom. Nice. Seems to be the Mississippi way of dealing with court-ordered prohibitions on discrimination: remember when the city of Jackson, Mississippi was ordered in the 1960s to desegregate the public pools and in response closed all the pools?

I’ve been following the litigation in this case, not only because I am generally interested in the struggles of gender-warriors such as Constance, but also because of the strategy decisions being made by the lawyers handling her case. In their demand letter to the school district (something lawyers do before bringing an actual lawsuit) the ACLU lawyers and their pro bono counsel at Kramer Levin made three arguments: first that students have a First Amendment right to bring a date of the same sex to the prom; second that students have an equal protection right not to be discriminated against on the basis of their sexual orientation; and third that Title IX, the federal law that prohibits public schools from discriminating on the basis of sex, includes discrimination on the basis of sex stereotypes, including students who express gender non-conforming behavior such as a girl who wishes to wear a tuxedo rather than a dress. Yet the complaint they filed in the case only raised the First Amendment expression claim – the sexual orientation discrimination and gender-stereotyping claims were dropped.

Now, I’m sensitive to the strategic decisions that lawyers have to make about avoiding making bad law in a conservative jurisdiction such as Mississippi, and for that reason I get it that they didn’t make the sexual orientation discrimination claim, but I’m more concerned about dropping the Title IX gender stereotyping cause of action. My concern is that the issues in the case might become overdetermined by Candice’s sexual orientation, that is, that bringing a female date and wanting to wear a tux are things that only lesbians want to do. But of course the sex of her date and the kind of clothes she wants to wear are in some respect independent of one another – at least as one is thinking about the nature of the legal issues at stake. A girl shouldn’t have to be a lesbian to refuse to wear a dress to school o r to school parties. Thus the tux claim is one in which all girls/women have a stake regardless of their sexual orientation (as do all boys/men). There is a risk in dropping the gender-based claim that the tux issue will be seen as an epiphenomenon of the orientation issue.

And that’s sort of what happened in the judge’s preliminary opinion in the case. The ACLU argued, and the judge held, that with respect to Constance’s desire to bring a female date to the prom the Constitution protects a student’s “expression of one’s identity and affiliation to unique social groups” as a kind of “speech” as envisioned by the First Amendment. Denying her the right to attend the prom with her female date thus amounted to a form of censorship of her peaceful expression of social and political viewpoints central to her sexuality. (For the moment I’ll hold back my observations about the perils of framing her orientation as “expression” and her desire to bring a female date to the prom as the articulation of a viewpoint “central to her sexuality,” as opposed to seeing it as her sexuality itself. You can see that this claim is very different from an equality claim that would argue that she was discriminated against on the basis of her identity, not on the basis of her expression of her identity.)

Having considered the “female date” issue, the judge went on to consider the “tux” issue under the First Amendment. The judge does a pretty good job of treating the choice of clothing as a form of protected expression independent from the orientation issue, framing the issue as: “Constance requested permission to wear a tuxedo, or even pants and a nice shirt, to her prom with the intent of communicating to the school community her social and political views that women should not be constrained to wear clothing that has traditionally been deemed “female” attire.” This wouldn’t be my way of framing the issue, since I would not want the protection of the Constitution to turn on the nature of her expressive intent in wearing the tux – what if she just thought she looked totally stylin’ in a suit, or her girlfriend thought she was really hot in a cumberbun, or she liked wearing a jacket and pants because they had pockets, which formal dresses never do, or for any other silly or profound reason? Perhaps more importantly, the boys did not have to have a particular expressive motivation for their decision to wear a tux, only the gender-nonconforming person does on this reasoning.

In effect, this is the cost of dropping the gender-stereotyping claim and instead shoe-horning the clothing claim into the First Amendment. The point should not be the legitimacy of Constance’s reason for wanting to wear a tux, but rather the illegitimacy of the school district’s reason for denying her the right to do so.

Finally, the judge concludes, with respect to the tux claim, “the record shows Constance has been openly gay since eighth grade and she intended to communicate a message by wearing a tuxedo and to express her identity through attending prom with a same-sex date.” Oops – here we see the tux issue turning back into the orientation issue. That’s a kind of slippage we’d want to avoid in this case.

It’s a good thing that the judge found a Constitutional problem with the school district’s policy on opposite sex dates and gender conforming clothing, and the issues will be argued and decided more fully in a trial at some future point – but I wish the judge had more to work with than merely the First Amendment expression cause of action.

In the meantime, it was announced yesterday that Constance McMillen has been chosen to be the Grand Marshall of the New York City Gay and Lesbian Pride parade this year. How fabulous. Wonder what she’ll wear??



