The way a student dresses can be protected under the First Amendment just like any other type of speech. The First Amendment doesn’t just protect written and spoken words, it protects expressive conduct too. Expressive conduct is protected as speech when it is intended to convey a particular message that will be understood by anyone who sees it.
For your question: It’s very likely that a biologically male student wearing a dress would count as expressive conduct, but it really comes down to why he’s wearing it. For the dress to be protected under the First Amendment, the student has to be wearing the dress with the intent to communicate a message, whether it is a political stance, a social commentary, or a simple expression of self-identity.
The Influence of Gender Roles
In society, there are a number of markers that are supposed to identify gender. For example, females are supposed to be soft-spoken, wear dresses, heels, and make-up, and play with dolls; men are supposed to be aggressive, wear pants, button-up shirts, and ties, and play sports. As society changes, some of these markers start to change—we don’t think anything of girls wearing pants or playing sports. But some things are still not socially common, like males wearing dresses.
Gender identity refers to a person’s experience of gender and preferences regarding his or her body, dress, speech and mannerisms. This identity might or might not match someone’s biological sex, and some individuals may identify differently depending on the day (often known as being ‘gender-fluid’). A student may break traditional societal gender roles for a number of reasons, from exploring his or her own identity or commenting on society. If someone is breaking gender roles to convey a message about themselves or society, it will be protected under the First Amendment.
Some examples where a biologically male student would wear female clothes to portray a message include:
- Protesting the school dress code for unfair policies that unequally focused on the clothing of one gender. (Example: girls cannot wear shorts above mid-thigh, but boys can wear skimpy running shorts. Or girls cannot wear shirts that expose a bra strap, but boys can show the tops of their boxer shorts.)
- -Raising awareness of issues like sexual assault (walk a mile in her shoes [link]) or LGBTQ rights
- -Commenting on traditional notions of gender conformity (i.e., commenting that wearing a dress isn’t what makes you a girl, it’s just a societal way of expressing gender)
- -Expressing his gender identity, whether or not he is transitioning to a different gender
Expressive conduct like wearing a dress that communicates one of the above messages would probably be considered passive political speech, which gets the highest protection under the First Amendment. Just because students or faculty may feel unsettled seeing a student in non-gender-conforming clothes, that does not amount to substantial disruption.
Even without substantial disruption, a school could be worried about the potential backlash that could come from a student wearing non-conforming clothes. That student could face bullying or harassment, which in extreme cases could even put the student in danger. However, many states recognize an idea known as the “heckler’s veto,” which says that a school can’t shut down a student’s speech just because there might be teasing, bullying, or harassment. Even though schools want to protect their students’ well-being, they can’t do so by shutting down that student’s First Amendment rights to free expression.
