Fashion vs. Gender

We should approach the crossing-dressing with tolerance

A MATTER OF OPINION: We should approach the question with tolerance, not legally questionable dress codes.

Perhaps nothing is as basic to our self-definition as how we dress. Yet some parents insist that the Francis Howell School District in St. Charles either must ensure that "proper dress" is worn by the "proper gender," or else must notify parents if an "identified cross-dresser" will be at a school function.

How, exactly, would the district decide who is an "identified cross- dresser"? Would it rely on rumors to decide if a parent is cross- dressing? Or, would it require parents to strip to determine their real gender?

For that matter, how would the district even decide what is proper dress for each gender? Notions of "male" and "female" dress are subjective. Respected male members of the French aristocracy used to wear high heels, stockings, powdered wigs and frilled blouses. And many of the women who attended the Francis Howell school board meetings about the cross-dressing controversy wore what could be considered traditionally male clothing - jeans or pants.

Most fundamentally, adopting a dress code for parents would be unconstitutional.

In 1985, a U.S. District Court judge for the Eastern District of Missouri struck down a St. Louis ordinance that prohibited any person from appearing in public "in a dress not belonging to his or her sex." (I represented the plaintiffs in that case as a cooperating attorney for the American Civil Liberties Union , together with attorney Stephen Miller.)

Controversy about what constitutes appropriate appearance for males is not new to St. Charles. In 1971, the 8th Circuit Court of Appeals struck down a St. Charles School District policy that regulated the hair length and hairstyle of male students.

In the St. Louis case, ((ITAL))D.C. et al v City of St. Louis ((ITAL)), Judge William Hungate ruled that the cross-dressing ordinance was unconstitutionally vague. On appeal of this same case - involving a different part of the same ordinance - the 8th Circuit Court of Appeals said that vague laws result in arbitrary and discriminatory enforcement, because policy decisions end up being made ad hoc and on a subjective basis.

As Judge Hungate noted in his decision, prohibiting a woman from wearing a man's hat, or a man from wearing a kilt, or a teenage girl from wearing her brother's shirt or, for that matter, a woman from wearing a pants suit, would be unreasonable. Moreover, he pointed out, "Necklaces and earrings are not infrequently worn by both sexes."

The 1971 case involved the suspension of a 15-year-old boy, Stephen Bishop, by the St. Charles School District, because his hair was longer than allowed by the district's hair policy. Stephen sued. The district lost.

The St. Charles School District defended its hair regulation by claiming that long hair would cause disruption, that the adverse reaction of others could jeopardize St. Charles' educational program, and that the St. Charles community favored the dress code.

The 8th Circuit rejected all these arguments. It held, in ((ITAL)) Bishop v Colaw((ITAL)), that ". . . among those rights retained by the people under our constitutional form of government, is the freedom to govern one's personal appearance. As a freedom that ranks high on the spectrum of our societal values, it commands the protection of the Fourteenth Amendment Due Process Clause."

The 8th Circuit Court's decision was about the hairstyle of a 15-year- old boy in a public school. Its conclusions in that case apply with even more force to the dress and hairstyle of adults, who are not subject to the kind of supervision faced by students in schools.

Perhaps the most important lesson from the 8th Circuit decision is this statement: "Toleration of individual differences is basic to our democracy, whether those differences be in religion, politics, or life-style." Sadly, the parents who have started the brouhaha in the Francis Howell District have failed to learn this basic democratic lesson.

Arlene Zarembka is an attorney in Clayton.